In Re Neuman's Estate.

• Decision Date: 24 June 1943
• Docket Number: No. 216.,216.
• Citation: 32 A.2d 826
• Parties: In re NEUMAN'S ESTATE.
• Court: New Jersey Supreme Court

32 A.2d 826

In re NEUMAN'S ESTATE.

No. 216.

Court of Errors and Appeals of New Jersey.

June 24, 1943.

Appeal from Prerogative Court.

Proceedings in the matter of the estate of Caroline Neuman, deceased, for the probate of decedent's will, opposed by Louis Neuman. From a decision of the Prerogative Court, 132 N.J.Eq. 7, 26 A.2d 499, affirming a decree of the Orphans' Court annuling a surrogate's order probating the will, Louis Neuman appeals.

Reversed.

PARKER and CASE, Justices, dissenting.

William D. Danberry, of New Brunswick (Russell Fleming, of New Brunswick, of counsel), for appellants.

John P. Romer, of Plainfield, for respondent.

BROGAN, Chief Justice.

This appeal presents the question of whether the will of the testatrix, Caroline Neuman, was the result of undue influence. The Orphans Court of Somerset County, after a contest on this issue, determined that the will was the result of undue influence exercised over the testatrix by her sister, Mrs. Sachs, and the Surrogate's order admitting the will to probate was annulled. The learned judge, in an oral deliverance, dwelt upon several component elements in the case that he considered were established by the evidence and upon which his ultimate conclusion necessarily rested. These premises, if proved, supported his conclusions; but we cannot perceive that they were proved. For instance, the court found that the testatrix and her husband, Louis, lived in domestic harmony, ‘without discord and under such circumstances as to indicate that they had mutual trust and confidence in one another.’ We find no testimony that persuades us that such was their domestic situation. A calm evaluation of the testimony and one of the letter exhibits leads us to a conclusion quite the opposite. The testatrix and her husband, hard-working neighborhood storekeepers, had been married for twenty-eight years. For twenty years preceding the wife's death they worked together, engaged in the bakery business, he as a baker, his wife as the operator of the store and managing the business transactions incident thereto. By industry and frugality they acquired three parcels of real estate, which they held as tenants by the entirety. The wife collected the rents and the moneys arising from the bakery business. All proceeds were deposited in the bank account of the husband in which the wife had no interest. So much for the business relationship between the husband and the testatrix. There were no children of the marriage. The husband, Louis, who had been married before, had a foster son, Ignatz, now about thirty-nine years old. The status of Ignatz is not defined. Louis Neuman testified he was not his son by his previous marriage nor had he adopted him at any time but that nonetheless he regarded him as a son ‘and I will give him my name.’ Ignatz did not testify in the case.

By the will Mrs. Neuman bestowed her entire estate, both real and personal, on her mother for life, and the remainder in fee to her nephew, Allen, son of her sister, Pauline Sachs.

At the time the will was executed Mrs. Neuman was a patient in St. Peter's Hospital in New Brunswick, N. J. The will was signed on April 11, 1941. She had entered the hospital on April 3, and had undergone a serious operation on April 5. The judge also found as an element for his conclusion that shortly after her admission to the hospital Mrs. Neuman manifested a changed attitude (towards her husband) ‘a pronounced shifting of affection.’ This change in attitude was attributed to the influence of her sister, Mrs. Sachs. The influence was found to be ‘undue’ and the will was denied probate. We find no proof to support this finding although a suspicion to that effect may be justified. But suspicions are not proofs and should not be elevated to the status of legitimate inferences or facts. An appeal to the Prerogative Court resulted in an affirmance of the decree of the Somerset Orhans Court.

This court has had occasion from time to time to consider the question of undue influence and from these adjudications it is clear that an influence, if it is to be considered as undue, must be such that it has resulted in destroying the free agency of a testator in regard to the disposition of his property. The coercion exerted may be mental, moral or physical, or all three, but it must be such as to preempt the testator from following the dictates of his own mind and will and accepting instead the domination and influence of another. No exclusive formulary may be prescribed that will serve as a standard or norm to ascertain the presence or absence of what the law denominates undue influence in any given case. But each case must be decided according to the attending facts and circumstances. In one instance, if a testator was enfeebled by age and disease slender proof of influence exerted by one holding a relationship of trust and confidence could justify the conclusion that it was undue, while in another instance, like evidence would be wholly inadequate if the testator was a vigorous and strong-willed person. Cf. In re Johnson's Will, 80 N.J.Eq. 525, 85 A. 254, 260; In re Buckman's Will, 80 N.J.Eq. 556, 85 A. 246; Clifton v. Clifton, 47 N.J.Eq. 227, 21 A. 333; In re Tunisan's Will, 83 N.J.Eq. 277, 90 A. 695; In re Strang's Will, 109 N.J.Eq. 523, 158 A. 489; Wheeler v. Whipple, 44 N.J.Eq. 141, 14 A. 275, affirmed 45 N.J.Eq. 367, 19 A. 621.

The burden of proving undue influence rests on him who alleges it. In re Strang's Will, supra. Such burden does not shift merely because of the existence of a confidential relationship, without more, as in the matter of gifts inter vivos. There must be, in the case of wills, some other facts in proof besides a confidential relationship between testator and beneficiary. For example, that the testator's mentality was so enfeebled that it could not well resist improper influence; or solicitude and action on the part of the dominant mind to see that the will was prepared and executed; or the selection of a person to prepare it; arrangement for the presence of particular testamentary witnesses or some such self-serving and suspicious element. Compare Wheeler v. Whipple, supra, and In re Cooper's Will, 75 N.J.Eq. 177, 71 A. 676, affirmed sub-nom. Harrison v. Axtell, 76 N.J.Eq. 614, 75 A. 1100. Nor are the cases, In re Colton's Estate, 11 N.J.Misc. 410, 166 A. 521, affirmed 115 N.J.Eq. 327, 170 A. 610, or In re Smalley's Estate, 124 N.J.Eq. 461, 2 A.2d 321, affirmed 126 N.J.Eq. 217, 8 A.2d 296, to the contrary. Mrs. Sachs was not the dominant personality in the situation before us. The testatrix in this case, fifty-seven years of age, was not a person likely to be either coerced, intimidated or cajoled. A reading of the record rather compels the notion that she was a determined, strong-willed woman who know exactly what she wanted to accomplish and acted accordingly. Her mentality was unimpaired. No witness suggests anything to the contrary. She had no children of her own and her concern about her aged mother was not only praiseworthy but most natural. The record is replete with testimony of the concern Mrs. Neuman had for her mother's welfare. She could not adequately provide for her out of her personal estate which amounted to about $400. Besides her mother and her husband her next of kin were two brothers and three sisters. Only the husband challenged the will, charging the undue influence of Mrs. Sachs. None of the brothers or sisters had any particular claim to the bounty of the testatrix and if she had a preference for the child of one of them-and there is evidence that the had-she was at perfect liberty to benefit him as remainderman, at the end of her mother's life estate.

The testimony of the several witnesses on the facts and circumstances surrounding the making of the will and the occurrences at the hospital and after the testatrix was removed to her home is important and a rather detailed appraisal of them, unavoidable.

William D. Danberry, a reputable member of the Bar of this state, drew the will in question. He testified that he had never met the testatrix until he was called to St. Peter's Hospital on April 11, 1941, and asked by her to draw the will. The testatrix told him ‘what she wanted, how she wanted to leave her property, and what her property consisted of as she knew it and understood it, and I drew the will there in the hospital.’ Further, ‘I read the will to her and we talked. She was satisfied with it and said it was what she wanted.’ The will, properly executed, was witnessed by Mr. Danberry and a Mrs. Manry, employed at the hospital as assistant to the superintendent. No one except the testatrix and the two witnesses was present. On cross-examination it appeared that Mr. Danberry had come to the hospital in response to a telephone call to his home from Mrs. Manry, received between 11 and 12 o'clock in the morning on the day (Good Friday) on which the will was drawn. He inquired of Mrs. Manry whether the person was seriously ill, and receiving an affirmative answer, went directly to the hospital and attended Mrs. Neuman. The testatrix informed him that she was worried about the well-being of her mother, who was aged, and that she wanted her mother ‘to have everything that she (testatrix) had for life and she wanted anything that was left to go to her nephew, Allen.’ Upon learning that her personal estate amounted to very little and being informed that the title to certain real estate was in the name of the testatrix and her husband as tenants by the entirety, Mr. Danberry informed the testatrix that the will ‘would not control her real estate,’ whereupon the testatrix advised him that ‘she hoped to be able to persuade her husband to divide the real estate so that he could have his share of it and she could have her half of it to do with as they each individually pleased’ and that she would have her lawyer, Mr. Randolph (who was out of town on the day in question) attend to...