Ward v. Harrison, 110.

• Decision Date: 19 February 1925
• Docket Number: No. 110.,110.
• Parties: WARD v. HARRISON.
• Court: New Jersey Supreme Court

127 A. 691

WARD

v. HARRISON.

No. 110.

Court of Errors and Appeals of New Jersey.

Feb. 19, 1925.

Appeal from Prerogative Court.

Proceeding by J. Henry Harrison, as executor, to probate the will of Eliza C. Bishop, deceased, contested by Catherine I. Ward. From a decree of the Prerogative Court (125 A. 384) affirming a decree of orphans' court admitting will and codicil to probate, contestant appeals. Affirmed.

L. Edward Herrmann, of Jersey City (Elmer E. Wigg, of Bloomfield, of counsel), for appellant.

Osborne, Cornish & Sheck, of Newark, for respondent.

KALISCH, J. This is an appeal from a decree of the Prerogative Court, affirming a decree of the Essex county orphans' court, admitting to probate a will and codicil thereto of Eliza C. Bishop, deceased, as her last will and testament.

The attack made upon the validity of the will, by the caveatrix, Catherine I. Ward, a grandniece of the testatrix, was and is: (1) Mental incapacity at the time of the making and execution of the will, on December 9, 1914; (2) undue influence.

As to the claim that the testatrix was mentally incapacitated to make and execute a valid will and codicil, our attention has not been directed to any testimony in the cause which goes to the extent of establishing that at the time the two instruments were made and executed by the testatrix she did not possess sufficient mental capacity to know the extent of her estate and to sum up the natural objects of her bounty. While it is true that she was 78 years of age at the time when she executed her will, and was 5 years older when she executed the codicil, nevertheless it appears that she, unassisted, furnished the information to Mr. Church what individuals and charitable institutions were to be the objects of her bounty, what amount of money or species of property each was to receive, and to what extent.

The will contains some 31 bequests, the legatees being two nieces of the testatrix and her grandniece, the caveatrix, and nephews, nieecs, and cousins of her husband, and her friends, including several clergymen, not forgetting her faithful servant Jones and his brother, and various charitable institutions.

For the appellant it is contended that she was afflicted with senile dementia at the times when the will and codicil were executed. But, be this as it may, we cannot omit to take into account her activities in and about her own affairs, for it is quite apparent that whether she was senile, or a senile dement, the decay of her mental faculties had not reached that stage which would render her incompetent to execute a valid will.

"We approve of the rule adopted by Van Fleet, Vice Ordinary, in Bennett v. Bennett, 50 N. J. Eq. 439, at pages 445, 446, 26 A. 573, 575, where that learned jurist says:

"By our law the right of testamentary disposition may be exercised by a person of very moderate capacity. He must have a sound and disposing mind and memory, but his memory may be very imperfect; he may not be able, at all times, to recollect the names, the persons or the families of those with whom he has been intimately acquainted; he may at times ask idle questions and repeat those which have been asked and answered; he may not have sufficient strength of memory and vigor of intellect to digest all parts of a contract, and yet be competent to make a will. If he is capable of recollecting of what his property consists, and who, either in consequence of ties of blood or friendship, should be the objects of his bounty, and has a mind sufficiently sound to enable him to know and to understand what disposition he wants made of his property after his death, he is competent to make a valid will."

The circumstances present in the case, sub judice, that the testatrix became and was filthy in her habits, was slovenly in her dress, careless in her deportment in the presence of company, indulged in detailing her youthful exploits in affairs of gallantry or otherwise, and recounted with zest her recollection of events of her childhood days, and was garrulous, and at times peevish and stubborn, are not inconsistent with her being possessed of sufficient mental capacity to execute a valid will. While all these manifestations, taken together, may be evidence of...