Waddington v. Buzby

• Decision Date: 01 February 1889
• Citation: 16 A. 690,45 N.J.E. 173
• Court: New Jersey Supreme Court
• Parties: WADDINGTON v. BUZBY.

16 A. 690

45 N.J.E. 173

WADDINGTON

v. BUZBY.

Count of Errors and Appeals of New Jersey.

February 1, 1889.

Appeal from prerogative court; MCGILL, Ordinary. 10 Atl. Rep. 862.

W. T. Hilliard, for appellant. C. H. Sinnickson, for appellee.

SCUDDER, J. A careful consideration of the facts in this case has changed my first impression, and led me to a different result from that reached in the courts which have made the prior examinations of the questions presented. It appears, in my judgment, that sufficient weight has not been given to the extent of the right which the law gives to the owners of property to dispose of it by will, the moderate capacity required for the exercise of this right, and the aid they may invoke from others in giving order and legal form to their wishes without subjecting them to the charge of fraud and undue influence. At the date of this writing and its execution, April 20, 1882, Ruth W. Buzby was about 83 years old, and she died in 1886. She was feeble and forgetful to the extent that persons ordinarily are at such an advanced age, and she was nearly blind, so that she could not read, or did so with difficulty. But she could at that time go about the house, knew the members of the family, talked about her business affairs, remembered the amount of her property, and where it was invested, objected to the reduction of the percentage of interest, took a part in the routine of the house, and the payment of bills, and conversed with visitors whom she knew. She had been an intelligent woman, but not of very strong will, rather reticent than talkative, and became more silent and absent-minded as she grew old. She was injured by a fall, and failed in physical and mental strength from that time gradually until her death. The opinions of witnesses as to her mental capacity are of no weight unless sustained by facts on which such opinions are founded; and those who saw her seldom, or but once, and say she was silent, and appeared absent-minded, give little aid in determining this question. Lowe v. Williamson, 2 N. J. Eq. 82; Sloan v. Maxwell, 3 N. J. Eq. 581; Whitenack v. Stryker, 2 N. J. Eq. 8; Andress v. Welter, 3 N. J. Eq. 605; Stackhouse v. Horton, 15 N. J. Eq. 202; Pancoast v. Graham, 15 N. J. Eq. 294; Stevens v. Vancleve, 4 Wash. C. C. 262; Den v. Vancleve, 5 N. J. Law, 589; Harrison v. Rowan, 3 Wash. C. C. 580; Turnery. Cheesmnn, 15 N. J. Eq. 243; Eddy's Case, 32 N. J. Eq. 701, 33 N. J. Eq. 574: Collins v. Osborn, 34 N. J. Eq. 511; and others that might be cited,—are cases in our state where persons who were aged, diseased, blind, and infirm have executed wills, and the rule of capacity by which they may be sustained has been enunciated.

It is shown to my satisfaction that the testatrix, at the time she executed this writing, was capable of recollecting the property she was about to dispose of, understanding the manner of distributing it therein set forth, the objects of her bounty, and the nature of the business in which she was engaged. If so, she had the requisite testamentary capacity. The paper was in fact executed by her as her last will and testament, in the presence of two witnesses present at her house at the same time. The attesting clause does not say that they signed in the presence of the testatrix. One of these subscribing witnesses is dead; the other is living, but does not remember the circumstances. He is certain as to his signature, and that of the other witness is proved by his son. It is shown by the testimony of the other two persons who were present at the signing of the paper that they were all together in the dining-room when she signed and requested them to sign as witnesses to her will. This completes the attestation. It also appears that the will was read to her before signing. She took the will after execution, herself, upstairs, put it in a box with her other papers in a drawer of her room where she slept, and it remained in her possession until her death, about five years after its date. Of the fact of its due execution, and her capacity to make it, there seems to me to be satisfactory proof offered.

The more serious question in the case is whether Ruth W. Buzby executed this writing, purporting to be her last will and testament, through the undue influence of George G. Waddington, the proponent. The influence that will vitiate a will must be such as in some degree destroys the free agency of the testator, and constrains him to do what is against his will, but what he is unable to refuse, or too weak to resist. 1 Jarm. Wills, *37; Lynch v. Clements, 24 N. J. Eq. 431; Moore v. Blauvelt, 15 X. J. Eq. 367.

It is claimed that this appears in several particulars. The proponent wrote the will in which he was made sole executor, and his son and wife were favored legatees. In Rusling v. Rusling, 35 N. J. Eq. 120, 36 N. J. Eq. 603, it was said that the fact that the will was drawn by a favored legatee, while it calls for suspicious scrutiny of the circumstances, does not, of itself, invalidate the will. The same rule would apply where the legacies were given, not to himself, but to those who stand in such near relationship to him as a son and wife. We must therefore look for other circumstances. Each case must be judged by its own circumstances, and no general rule can be made applicable to all cases. The...