Neely v. MERCHANTS TRUST CO. OF RED BANK, NJ, 4584.

• Decision Date: 17 January 1939
• Docket Number: No. 4584.,4584.
• Citation: 26 F. Supp. 130
• Parties: NEELY v. MERCHANTS TRUST CO. OF RED BANK, N. J., et al.
• Court: U.S. District Court — District of New Jersey

26 F. Supp. 130

NEELY v. MERCHANTS TRUST CO. OF RED BANK, N. J., et al.

No. 4584.

District Court, D. New Jersey.

January 17, 1939.

M. Casewell Heine, Albert G. Avery, and George Gordon Battle, all of New York City, for plaintiff.

Parsons, Labrecque & Borden, by Theodore D. Parsons and Theodore J. Labrecque, all of Red Bank, N. J., for defendants.

FAKE, District Judge.

The plaintiff herein seeks specific performance of an alleged oral agreement made by Eliza A. S. Calef with him on or about September 10, 1921, whereby she agreed, among other things, to "execute and leave on her death, her last will and testament, wherein she would provide that plaintiff should be her residuary legatee and devisee", and also to make plaintiff the executor of said will.

The said Eliza Calef departed this life on November 25, 1929 intestate. Thereafter, proceedings were brought in the Prerogative Court of New Jersey to probate a carbon copy of a will alleged to be the last will of Eliza A. S. Calef. This resulted in a denial of probate by the state court and a final holding that the original will had been destroyed animo revocandi. In dealing with the subject matter involved in that proceeding, the learned Vice-Ordinary filed an exhaustive opinion, in the course of which he said, as bearing upon the credibility of plaintiff: "There are compelling reasons here for not giving the word of Neely an absolute right of way. All of his testimony respecting custody of the will and access or opportunity to repossess by Mrs. Calef, and, in fact, almost his entire testimony, is such as could be denied by no one except Mrs. Calef. And her voice is silenced by death. Neely has undoubtedly testified falsely in some particulars. `Falsus in uno, falsus in omnibus.' And while I need not, of course, discard all his testimony, I have no hesitancy in saying that I place very little reliance upon it." In re Calef's Will, 109 N.J.Eq. 181, 156 A. 475, 481.

So likewise here, the testimony of Neely, his attitude on the witness stand and his general demeanor before the Court has led me to accept his testimony on material matters, only when corroborating circumstances have been found to support his position.

At the time of their first meeting, Mrs. Calef and Mr. Neely were well along in years, she a widow, and he a widower. This acquaintance ripened into a strong platonic friendship. Both were without family encumbrances and undoubtedly found comfort in each other's society. They resided at...