In re Smalle'ys Estate

• Decision Date: 16 November 1938
• Docket Number: No. 5487.,5487.
• Citation: 124 N.J.Eq. 461,2 A.2d 321
• Parties: In re SMALLE'YS ESTATE.
• Court: New Jersey Supreme Court

2 A.2d 321

124 N.J.Eq. 461

In re SMALLE'YS ESTATE.

No. 5487.

Prerogative Court of New Jersey.

Nov. 16, 1938.

Syllabus by the Court.

1. Where one stands in a relation of confidence and trust toward a testatrix and advises with her alone as to the terms of her will under which he is the chief beneficiary, that fact added to other suspicious circumstances, raises a presumption of undue influence and calls for satisfactory proof that the will was the free and uninfluenced act of the testatrix.

2. Evidence examined and held that the presumption of undue influence in this case has not been rebutted.

Appeal from Orphans' Court, Morris County.

Proceeding in the matter of the estate of Flora E. Smalley, deceased. From an order of the Orphans' Court refusing to set aside an order of the Surrogate admitting the will of Flora E. Smalley to probate, Mary L. Bolles, opposed by Herbert M. Alexander and another, executors, appeals.

Order reversed.

Hillery & Young, of Morristown (Eugene F. Hillery, of Morristown, of counsel), for appellant Mary L. Bolles.

Howe & Davis, of Orange (William Howe Davis, of Orange, of counsel), for respondents Herbert M. Alexander et al, executors.

FIELDER, Vice Ordinary.

Decedent, Flora E. Smalley, a maiden lady, died at her home 10 Garden Street, Chatham, at the age of 79 years. Her nearest relatives were Mrs. Mary L. Bolles, a sister of the whole blood, residing in Ohio for the past 60 years, and Mrs. Minnie A. Alexander, a sister of the half blood who, from the time of her birth 67 years ago, has resided with decedent continuously up to decedent's death.

Miss Smalley had been a school teacher and had accumulated an estate of about $19,000. She made a will dated April 28, 1932, the important provisions of which were (a) that Mrs. Alexander should have the right to occupy 10 Garden Street so long as she wished and when she ceased to occupy, the premises should be sold and from the proceeds $2,000 should be paid to her and $2,000 to Mrs. Bolles and the balance should fall into the residuary; (b) that the income from the residuary should be equally divided between Mrs. Bolles and Mrs. Alexander and at the death of either, the deceased's share of income should be divided equally between Miss Smalley's two nephews, William B. Bolles (son of Mrs. Bolles) and Herbert M. Alexander (son of Mrs. Alexander); that after the death of both sisters the residue should be divided one-third to William Bolles and two-thirds to Herbert Alexander.

The latter part of June 1937 Miss Smalley, through her nephew Herbert, sent word to an attorney of this state that she desired to see him and he called at her home and learned she wished to make a new will. He conferred with her alone, discussed the provisions of the 1932 will and received her instructions as to what changes she desired made therein. He prepared a new will following closely the provisions and scheme of the 1932 will, but making the following changes therein (a) that Mrs. Alexander should have 10 Garden Street for life on condition that she occupy it as a residence and upon her death, or ceasing to occupy, the premises should be sold by the executors and if the proceeds be $4,000 or less, the same should be divided equally between Mrs. Bolles and Mrs. Alexander, but if the proceeds exceed $4,000, the executors pay $2,000 to each sister and the balance to fall into the residuary; that if either sister be dead at the time of sale, the proceeds up to $2,000 be paid the surviving sister and the balance paid into the residuary and that if both be dead, the whole proceeds to fall into the residuary; (b) that the entire residue should be invested by the executors and the income paid equally to Mrs. Bolles and Mrs. Alexander and upon the death of either, the deceased's share of income be divided equally between Miss Smalley's nephews William Bolles and Herbert Alexander and upon the death of both sisters, the entire residue be distributed one-third to William Bolles and two-thirds to Herbert Alexander. The attorney came to Miss Smalley's home with the prepared will, saw her alone, read the will to her, discussed its provisions and when she had expressed her satisfaction with it, had her execute it in the presence of two neighbors to whom she declared it to be her will. This will was executed June 25, 1937 and was left with her by the scrivener.

Two days later the nephew Herbert Alexander called on Miss Smalley and talked with her alone. The will was produced and discussed, and the next day Alexander notified the attorney that Miss Smalley desired to change her will, outlined the changes and requested the attorney to meet him at Miss Smalley's home the following night. They met and the attorney, Alexander and Miss Smalley discussed the changes. The following day the attorney redrew the will, copying all provisions in the will of June 25, except a minor change in a clause concerning care of a cemetery plot and except also the following changes in the specific provisions to which I have referred: (a) That Mrs. Alexander should have an estate for life in 10 Garden Street upon condition that she occupy it as a residence; that upon her death, or ceasing to occupy, the executors should sell and, if she be living, invest the proceeds and pay her the income for life and upon her death pay the proceeds to Herbert Alexander; (b) that the executors should invest the residuary and during the life of Mrs. Alexander, pay one-half of the income to Mrs. Bolles and the other half to Mrs. Alexander and upon the death of Mrs. Alexander, pay the entire residue of her estate to Herbert Alexander. The next day the attorney came to Miss Smalley's home with the new will, saw her alone, and after the new draft was read to her, or she read it, called in witnesses and the will was executed June 29, 1937. A few days later Herbert Alexander was again at Miss Smalley's home, saw her alone when she produced the executed will and he and she read it together.

Miss Smalley died July 12, 1937 and her last will was admitted to probate by the surrogate of Morris county July 24, 1937. Appeal to the Orphans' Court was subsequently taken to set aside the probate on the grounds of (1) testamentary incapacity, (2) defective execution, and (3) undue influence, and the Orphans' Court entered its order May 13, 1938 confirming the order of the surrogate admitting the will to probate. The appeal here is from the order of...