In Re Nixon's Will.

• Decision Date: 02 February 1945
• Docket Number: No. 222.,222.
• Citation: 41 A.2d 119
• Parties: In re NIXON'S WILL.
• Court: New Jersey Supreme Court

41 A.2d 119

In re NIXON'S WILL.

No. 222.

Court of Errors and Appeals of New Jersey.

Feb. 2, 1945.

Appeal from Prerogative Court.

Proceeding in the matter of the estate of Edward Nixon, deceased, for the probate of decedent's will by Francis I. Thompson and another, opposed by William Nixon. From a decision of the Prerogative Court, 135 N.J.Eq. 117, 37 A.2d 295, reinstating to probate the will and reversing a decree of the Orphans' Court, 21 N.J.Misc. 84, 32 A.2d 355, reversing a Surrogate's Order probating the will, William Nixon appeals.

Affirmed.

CASE and COLIE, JJ., dissenting.

Lewis S. Beers, of Phillipsburg, for appellant.

Herr & Fisher, of Flemington (Wesley L. Lance, of Clinton, and Edward J. O'Mara, of Jersey City, of counsel), for appellees.

BROGAN, Chief Justice.

The decree of the Prerogative Court, now under review, reinstated to probate the will of Edward Nixon. The Warren County Orphans' Court denied probate on the ground that the instrument was vitiated by undue influence. The matter came before the Orphans' Court on the petition of appeal of William Nixon, a brother of the decedent, who charged that the will was the product of undue influence on the part of Francis L. Thompson, the testator's lawyer, who drafted the will. Previously the will had been admitted to probate by the Surrogate of Warren County upon ex parte proof of due execution. The Orphans' Court reversed the order for probate holding that the ‘proponent (Thompson) had not by credible and convincing testimony overcome the presumption of undue influence placed upon him by the circumstances surrounding the drawing and execution of the said paper writing purporting to be the last will and testament of the said Edward Nixon, deceased.’

On appeal to the Prerogative Court the learned Vice Ordinary reversed the Warren County Orphans Court, exonerated Mr. Thompson, and determined that the will was the uninfluenced act of the testator. See In re Nixon's Estate, 135 N.J.Eq. 117, 37 A.2d 295. The facts of this case have had full exposition in the opinion of the Prerogative Court, supra, and need not be repeated here.

When the matter was heard in the Orphans' Court, and later was argued on appeal in the Prerogative Court, the contestant attempted to show undue influence out of the fact that Thompson, the draftsman of the will, benefited by its provisions to the extent of a bequest of $2,500, while his secretary, Miss Lommason, received a legacy of $750. Mr. Thompson was also named as executor of the will. The value of the entire estate was $65,000.

The burden of proving undue influence is upon him who asserts it. Undue influence is never presumed. It may be established by direct evidence-although the manifest difficulty in this direction is bound to make such cases rare-or the testimony must establish facts and circumstances from which the inference of undue influence arises. The bare fact that a beneficiary under a will occupied a position of trust and confidence to the testator creates no presumption of undue influence (Wheeler v. Whipple, 44 N.J.Eq. 141, 14 A. 275, affirmed 45 N.J.Eq. 367, 19 A. 621; Loveridge v. Brown, 98 N.J.Eq. 381, 388, 129 A. 131) even when such beneficiary actively participates in drawing the will. Bennett v. Bennett, 50 N.J.Eq. 439, 26 A. 573; Ward v. Harrison, 97 N.J.Eq. 309, 314, 127 A. 691 (but compare In re Bartles' Will, 127 N.J.Eq. 472, 13 A.2d 642). There are some cases in our reports, however, which seem to hold that the mere existence of such relationship places the burden of proving that the will was the free act of the testator upon the proponent (see In re Davis' Will, 73 N.J.Eq. 617, 68 A. 756; In re Banvard's Estate, 83 N.J.Eq. 286, 89 A. 1024, affirmed 83 N.J.Eq. 694, 925 A. 1086); but this is not the true rule and these cases, as well as any others, enunciating such rule (e. g., In re Bishop's Will, 96 N.J.Eq. 595, 125 A. 384) are disapproved in this particular.

We think that the true rule was stated in our opinion in In re Neuman's Estate, 133 N.J.Eq. 532, 32 A.2d 826. This rule, reiterated by this court during the present term (see In re Heim, 40 A.2d 651), is that the mere existence of a confidential relationship...