In re Tunison's Will

• Decision Date: 18 May 1914
• Citation: 90 A. 695,83 N.J.Eq. 277
• Parties: In re TUNISON'S WILL.
• Court: New Jersey Supreme Court

90 A. 695

83 N.J.Eq. 277

In re TUNISON'S WILL.

Prerogative Court of New Jersey.

May 18, 1914.

Appeal from Orphans' Court, Essex County.

Proceedings by Clarence W. Tunison for the probate of the will of Elizabeth W. Tunison, contested by Benjamin C. Tunison. From a decree of the orphans' court reversing a decree of the surrogate admitting the will to probate, the proponent appeals and the objector cross-appeals. Decree of orphans' court denying probate reversed, and probate of the will sustained. Decree affirmed on cross-appeal.

Henry C. Hunt and Alfred F. Skinner, both of Newark, for appellant. Cortlandt & Wayne Parker, both of Newark, for respondents.

HOWELL, Vice Ordinary. Mrs. Elizabeth W. Tunison died in February, 1911, leaving her surviving four children, Benjamin C. Tunison, William E. Tunison, Clarence W. Tunison, and Ella T. Sargent. Benjamin C. Tunison was and is a nonresident; the other three reside in New Jersey. On March 1, 1911, Clarence W. Tunison produced his mother's will before the surrogate of the county of Essex; on that day the same was admitted to probate, and letters testamentary were issued to the said Clarence W. Tunison as one of the executors appointed by the will. On March 3d following William E. Tunison, the other executor, applied for letters testamentary, and the same were on that day issued to him. In July, 1911, Benjamin C. Tunison appealed from the order of the surrogate admitting the will to probate, and the case came on for hearing de novo before the orphans' court in January, 1912. The orphans' court reversed the action of the surrogate by an order entered April 25, 1913. By this order the said will was rejected and a counsel fee of $1,500 was allowed to the proctors for the appellants, and a like fee of $1,200 to the counsel of the respondents, besides the costs of suit of both parties, including the stenographic copies of the evidence. The proponent then appealed to this court from that part of the decree which rejected the will, and Benjamin C. Tunison appealed from that part of the decree which allowed a counsel fee and costs to the proponent, and also from such part of the decree as directs that the costs and counsel fees of both parties, including stenographic copies of evidence, should be paid from the estate, instead of being paid by the proponent personally.

The due execution of the will is not questioned. The only attack made upon it is upon the ground that the testatrix was unduly influenced to make the will by her son Clarence W. Tunison, with whom she lived and who at the time the will was made was almost her sole companion, caretaker, and adviser. The property devised by her will came to her under the will of her husband, who was a clergyman affiliated with the Methodist Episcopal Church. His will was made November 26, 1887. By it he devised and bequeathed to his wife, Elizabeth W. Tunison, all his real and personal property, to be held, used, and disposed of by her according to her will and pleasure, but that if at her death there was any property that had not been used or disposed of by her, either by will or otherwise, he directed that the same should be divided equally among his five children, being the four above mentioned, and one daughter, Alice B., who has since died, but with a single exception that Benjamin C. should receive $2,300 less than either of the other children on account of advancements theretofore made to him, and also directing that the Florida farm should be transferred to Benjamin at the price and value of $1,800. The widow (the present testatrix) and the sons William and Clarence were the executors. The two sons alone qualified.

The will in question in this suit was executed by Mrs. Tunison on the 26th day of June, 1908. By its terms she provided for her son Benjamin C. and his family as follows: (1) She gave to Benjamin C. the income on $2,500 for the term of his natural life; and (2) in the event of his death the executors should pay from the principal thereof the sum of $500 to Nellie, his wife; and (3) $500 to her grandson George, son of Benjamin C, with remainder over to her other three children in case the said Nellie or George should depart this life before said Benjamin. She likewise provided (4) that her granddaughter Beatrice, daughter of Benjamin, should have the income on $1,250 until she arrived at the age of 21 years, at which time the principal should be paid to her, with the remainder over to the other three children, in case the said Beatrice should depart this life before arriving at the age of 21 years. She likewise provided (5) that Alice Tunison, daughter of Benjamin C., should have the income on $1,250 until she should attain the age of 30 years, but that in case she accepted the Roman Catholic faith, or became a member of the Roman Catholic Church, she should forfeit the said sum of $1,250, and the same should go to her three remaining children; all the rest, residue, and remainder of her estate should go to her three remaining children William E., Clarence W., and Ella T.; she appointed William E. and Clarence W. to be the executors thereof.

It is claimed on the part of Benjamin C. Tunison that his mother was induced by the undue influence of his brother Clarence to make a meager and limited provision for him and members of his family in order that he (Clarence) might benefit thereby. Mrs. Tunison, at the time of the execution of the will, was about 83 years of age. For some time prior thereto she had been an invalid, confined to her house, and part of the time to her bed; her constant companion and nurse was her son Clarence, who looked after her wants, assisted her in her illness and in her business affairs, and to a large extent might be called her confidential companion and adviser, and he seemed at times to have resented the desire of the other members of her family to see her, and occasionally made it somewhat awkward for them to do so. Under these circumstances it may well be said that it was his duty to refrain from attempting to influence his mother in any way in the disposition of her property. William E. Tunison lived in the same town in which Clarence and his mother lived; he visited his mother occasionally during her last illness, and was not on intimate terms with his brother Clarence; there was especially bad feeling between William's wife and Clarence. Mrs. Sargent lived a considerable distance from the other members of the family, and did not see them so frequently as did William. So far as I can ascertain from the testimony, Mrs. Tunison had no animosities against any member of her family, nor does it appear that she ever expressed herself as more favorable to one than to another.

In this case the charge of undue influence on the part of Clarence arises from the...