In re Propounding for Probate of a Paper purporting to be the Will of Pemberton, Deceased, late of the County of Monmouth

• Decision Date: 31 October 1885
• Citation: 4 A. 770,40 N.J.E. 520
• Parties: In re Propounding for Probate of a Paper purporting to be the Will of PEMBERTON, Deceased, late of the County of Monmouth.
• Court: New Jersey Supreme Court

4 A. 770

40 N.J.E. 520

In re Propounding for Probate of a Paper purporting to be the Will of PEMBERTON, Deceased, late of the County of Monmouth.

Prerogative Court of New Jersey.

October Term, 1885.

Appeals from the decree of the orphans' court of the county of Monmouth admitting the will to probate, and an appeal from an order directing the administrator pendente lite to pay the counsel fees, etc.

W. H. Vredenburgh and A. C. Hartshorne, for caveators.

G. C. Beekman, for proponent.

RUNYON, Ordinary. Two of these appeals are by John P. Pemberton and Henry H. Pemberton, respectively, from the decree of the orphans' court admitting to probate a paper purporting to be the will of their mother, Caroline Pemberton, deceased, and the other is by Caroline H. Pemberton, their sister, the proponent, from an order made, according to its recital, on consent of her proctor and counsel, directing that the administrator pendente lite pay the counsel fees, and costs and expenses of the litigation, which the court had decreed should be paid out of the estate. Motion is made to dismiss that appeal.

That the testatrix was competent to make a will when the instrument in question which is propounded as her last will and testament was executed, there can be no doubt. Indeed, her capacity is not questioned; but, the caveators, her two sons, insist that the proponent (who is her only daughter) procured the will by the exercise of undue influence over her. The will was made on the sixteenth of August, 1880, at Asbury Park, where the testatrix was then living with her daughter, who was keeping a boarding-house there. The testatrix died in London, England, November 20, 1882, over two years afterwards. She went from New York on a visit of pleasure to Europe, October 28, 1882, and died 10 or 12 days after her arrival in London. She was accompanied on the visit by the proponent and Henry, one of her sons. Both of the sons were and are physicians. Up to the time of her death they were not aware that she had made this will. According to their testimony, both of them were desirous that she should make a will before she sailed, and spoke to her on the subject, and it appears, by Henry's testimony, that he was desirous that she should do so up to the time of her death. By the will she gave to John mortgages to the amount of $1,200 of principal; to Henry mortgages to the amount of $1,962 of principal; and to Caroline two lots of land in Long Branch, adjoining each other, and a mortgage of the amount of $650 of principal, and also her building loan shaves and bank stock, together with all the residue of her personal estate. To Caroline's son she gave two lots of land in Ocean township, Monmouth county, and to John's daughter a lot in Eatontown township, in that county, and she appointed Caroline her executrix. The will was executed with all due legal formalities.

The attempt made to discredit it by endeavoring to show that the name of one of the three witnesses was added after the execution, and that alterations were made in the instrument after it was signed, by correcting sundry mistakes in the Christian name of the proponent and adding a note that those alterations and another were made before execution, was unsuccessful. The testatrix herself gave the instructions for the will to the lawyer by whom it was drawn, either on the same day on which it was executed or the day before, at his office, to which she went alone for the purpose, and she also brought to him, at his request, her deeds and mortgages, the former in order that from them he might describe the real estate to be devised, and the latter that he might describe them in the will. She told him that she wanted him to be very particular about the will, because her sons, both of them, had threatened that if she ever made a will they would contest it; that she did not know on what grounds they intended to contest it, except that one of them had told her that she was not capable of making a will; and that he would "fight it" on that ground. She was therefore desirous that the witnesses should be persons competent to testify to her competency, and, at her suggestion, two physicians were got. One was Dr. Mitchell, of Asbury Park, whom she herself suggested because he was the physician employed at her daughter's boarding-house, where she lived. The lawyer proposed to get as another Dr. Johnson, also of Asbury Park, but she objected to him on the ground that she thought that he and her sons were intimate friends, and she did not want to cause hard feeling between him and them. The lawyer then selected Dr. Kinmouth, of Asbury Park, and Drs. Mitchell and Kinmouth and Mr. Stout, the lawyer, witnessed her execution of the will. It was signed at the house in which she lived, and in the evening. There appears to have been no attempt or disposition to keep either the fact of the execution of the will or its contents secret. Mr. Stout testifies that it was read by him to her in the presence of Drs. Mitchell and Kinmouth before it was signed. He says he asked her whether she objected to its being read in their presence, and she replied no; that it had better be read in their presence; and he says that he read it to her while they, Drs. Kinmouth and Mitchell, sat talking to each other. It was delivered to her by Mr. Stout immediately after its execution. The proponent's son says that she delivered it to him (her grandson) for safe-keeping at his mother's house in Asbury Park on the first day of October, 1882, telling him to keep it safe; that she had protected his mother in it; and that she, the testatrix, was going to Europe. He went to the city of. New York the next day to reside there, and kept the will in his possession in his trunk until about the twenty-third day of November following, when it appears that, having heard from his uncle John P. Pemberton of the death of the testatrix, he rented a box in the vault of a safe deposit company in that city, and deposited it there, where it was kept until it was taken out for the purpose of propounding it for probate.

As before stated, the caveators insist that the will was the result of undue influence exerted over the testatrix by the proponent, with whom she lived for the last years of her life. The testatrix was a widow, (her husband died in 1875;) and when the will was made she was about 70 years old. Her son Henry was a bachelor, and her other son was married and had a family. It was quite natural that she should live with her daughter, who, though she had been married, had married unfortunately, and had been divorced from her husband. By him she had had one child, the son before mentioned. It is not surprising that, in disposing of her property by will, the testatrix should give the greater part of it to her daughter, who was dependent for her support on her own labor, and kept a boarding-house as a means of gaining a livelihood.

Between the mother and the daughter the most affectionate relations appear to have existed, and the daughter gave to the mother the kindest attention. It is urged by the caveators that the proponent influenced her mother to make the will in her favor, because of her desire to aggrandize herself, and because of her hatred to her brothers, whom she desired to deprive of their shares of the property of their mother. In the latter part of July, 1880, (the will was made on the sixteenth of August following,) Caroline's son, Charles, who then lived with her at Asbury Park, was sent by her and the testatrix from that place to Long Branch to pay some money for the former, and to make a deposit in the bank for the latter, and to that end was intrusted with money belonging to his mother, and bank checks belonging to the testatrix. He absconded, taking the money and checks with him. His mother at first thought that he had been robbed and murdered. Her brothers were of opinion that he had run away. They disliked him, and expressed opinions and made remarks very derogatory to him upon that occasion. She was very indignant at this, and complained bitterly of them, and inveighed strongly against what she seemed to regard as their injustice towards him, and their want of sympathy with her, and threatened that she would be revenged upon them; that she would "get square" or "get even with them "for their conduct towards him and her. She, indeed, denies that she made those threats, but they are sworn to by several disinterested witnesses. There is evidence that she urged her mother to make a will. The witnesses who testify on this point are Mary Williams, Georgianna Lucas, John P. Pemberton and Caroline M. Pemberton, his wife, Jane Schreeve, and Catharine Johns, all witnesses produced by the caveators.

The first-named, Mary Williams, who was a servant of the proponent in the summer of 1880, testifies that, at the time Charles went away, the proponent said, in her presence, in the kitchen of the proponent's house, that she had been after her mother to make a will, and she would not do it; and she added that she did not know what might happen; that now she would be there a lone woman, left alone if anything should happen. She further says that about a week, or perhaps longer, after Charles went away, she heard the proponent talking to her mother about a will; that she said: "Mamma, you ought to make a will. Indeed, mamma, you ought to make a will." She says the testatrix replied: "Carrie, don't bother me so about it; don't worry so...