Weeks' Estate, In re

• Decision Date: 05 February 1954
• Docket Number: No. A--748,A--748
• Citation: 103 A.2d 43,29 N.J.Super. 533
• Parties: In re WEEKS' ESTATE. . Appellate Division
• Court: New Jersey Superior Court — Appellate Division

Page 533

29 N.J.Super. 533

103 A.2d 43

In re WEEKS' ESTATE.

No. A--748.

Superior Court of New Jersey Appellate Division.

Argued Dec. 7, 1953.

Decided Feb. 5, 1954.

Arthur J. O'Dea, Hackensack, argued the cause for contestant-appellant.

Joseph J. DeLuccia, Paterson, argued the cause for proponents-respondents (Joseph J. DeLuccia and A. Lawrie Young, Paterson, attorneys).

Before Judges CLAPP, GOLDMANN and EWART.

The opinion of the court was delivered by

CLAPP, S.J.A.D.

This is an appeal from probate. Contestant-appellant, testatrix' stepson, raises the three matters usually raised in such a case: undue influence, mental incapacity and improper execution of the will.

John Karl and his wife, testatrix' sister, are charged with exerting the undue influence. Mental enfeeblement had brought testatrix to such a state of dependency and reliance upon them in point of mind, as to create a confidential relationship between them and her. In re Hopper's Estate, 9 N.J. 280, 88 A.2d 193 (1952); Stroming v. Stroming, 12 N.J.Super. 217, 79 A.2d 492 (App.Div.1951). This relationship, taken with other circumstances here, raises up a presumption of undue influence. In re Hopper, supra. Chief among the circumstances rousing our suspicions is that here is a will signed four days after the Karls had been enabled, through a Habeas corpus proceeding, to remove testatrix by ambulance to their home from a nursing home, where she had been under contestant's custody. The will not only benefits Mrs. Karl but cuts off contestant, who was almost the sole beneficiary under testatrix' preceding will.

This brings us to the question, what is the minimum quantum of proof needed to rebut this presumption. On this matter, in connection with all presumptions, there is, it is said, an 'intolerable confusion.' Model Code of Evidence, p. 57 (1942). However, in New Jersey it has been laid down broadly that a presumption disappears as a factor in the case 'where there is an adduction of substantial evidence by way of contradiction or explanation'. Meltzer v. Division of Tax Appeals, 134 N.J.L. 510, 48 A.2d 842, 843 (Sup.Ct.1946); Grand View Gardens, Inc. v. Borough of Hasbrouck Heights, 14 N.J.Super. 167, 81 A.2d 510 (App.Div.1951). Bearing in mind that in the Meltzer case the court was speaking of the review of an administrative determination, we infer that by 'substantial evidence' is meant such evidence, as would 'justify, if the trial were to a jury, a refusal to direct a verdict.' Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 71 S.Ct. 456, 459, 95 L.Ed. 456 (1950), and cases cited; cf. Model Code, supra, p. 310.

Authority fully in accord with this general rule as to presumptions will be found in excerpts from the Model Code, supra, Rule 704 and 9 Wigmore on Evidence (3rd ed.), § 2491, cited at length in Kirschbaum v. Metropolitan Life Insurance Co., 133 N.J.L. 5, 42 A.2d 257, 158 A.L.R. 743 (E. & A. 1945). The rule was first expounded in an 'epoch-making' treatise (Hughes v. Atlantic City, etc., R.R. Co., 85 N.J.L. 212, 216, 89 A. 769, L.R.A.1916A, 927 (E. & A. 1914)), Thayer, Preliminary Treatise on Evidence 336 (1898). For the contrary views of Professor Morgan, see Model Code, pp. 57--60; 47 Harvard L.Rev. 59 (1933); 44 Harvard L.Rev. 907 (1931).

There are other cases in this State which seem to bear out the rule stated. They hold that where a presumption is raised as to a fact, the issue over that fact will go to the jury 'only' where the evidence thereon is contradictory or reasonably subject to contradictory interpretations. Nicosia v. Marangi, 13 N.J.Super. 550, 554, 81 A.2d 20 (App.Div.1951); Coopersmith v. Kalt, 119 N.J.L. 474, 196 A. 649 (E. & A.1938); cf. Schultz v. Hinz,20 N.J.Super. 346, 349, 352, 90 A.2d 19 (App.Div.1952); Venghis v. Nathanson, 101 N.J.L. 110, 127 A. 175 (E. & A. 1925); Tischler v. Steinholtz, 99 N.J.L. 149, 152, 122 A. 880 (E. & A.1923); City Bank of Bayonne v. O'Mara, 88 N.J.L. 499, 97 A. 149 (Sup.Ct.1916); but see Wallace v. A. R. Perine Co., 113 N.J.L. 20, 172 A. 499 (E. & A.1934). When the issue does go to the jury, the presumption has by them disappeared as a factor in the proceedings; indeed a presumption is not even to be mentioned to the jury. Dunn v. Goldman, 111 N.J.L. 249, 168 A. 299 (Sup.Ct.1933); Kirschbaum v. Metropolitan Life Insurance Co., 133 N.J.L. 5, 42 A.2d 257, 158 A.L.R. 743 (E. & A.1945), supra, and cases cited; but see McCormack v. Williams, 88 N.J.L. 170, 95 A. 978, L.R.A.1917E, 535 (E. & A. 1915). These cases, holding that contradictory evidence on the issue must go to the jury, dovetail into the entirely settled rule that where the evidence submitted by way of rebuttal of a presumption is uncontradicted, the court must direct a judgment on the issue contrary to the presumption. Gaudreau v. Eclipse Pioneer, etc., Bendix Air Corp., 137 N.J.L. 666, 61 A.2d 227 (E. & A.1948). On the other hand, if the presumption is unrebutted, the court must of course direct a verdict on the issue in accordance with the presumption.

Thus the pattern of the law emerges, delineating and laying out on all sides the general rule, already adverted to. By that rule where a presumption is raised as to a fact and then sufficient evidence is adduced so that (apart from the presumption) reasonable men might honestly differ is to whether or not that is the fact, the presumption loses all its force and, indeed, ceases to exist.

There are exceptions to this rule in the case of presumptions which, because of policy considerations, are held not rebuttable except by proof equal to or stronger than that usually required upon a civil issue. For example, see the presumptions dealt with in: Strong v. Strong, 136 N.J.Eq. 103, 40 A.2d 548 (E. & A.1945)--proof beyond 'reasonable doubt'; Bacon v. Bacon, 6 N.J. 117, 125, 77 A.2d 802 (1951); Beach v. Palisade Realty and Amusement Co., 86 N.J.L. 238, 90 A. 1118, 1120 (E. & A.1914)--'clear and satisfactory evidence'; Aydelotte v. Metropolitan Life Ins. Co., 124 N.J.L. 266, 11 A.2d 122 (E. & A.1940). In all such cases, whether a preponderance of the evidence or a stronger measure of proof is required to rebut the presumption, the law, if it is to be practicable, must establish an exception to the rule that the burden of proof never shifts. Hughes v. Atlantic City, etc., R.R. Co., 85 N.J.L. 212, 216, 89 A. 769, L.R.A.1916A, 927 (E. & A.1914), supra; Kresse v. Metropolitan Life Ins. Co., 111 N.J.L. 474, 168 A. 634 (E. & A.1933).

In the case of a presumption of undue influence, apparently because the presumption is fortified by policy, the proponent must, according to the language of the cases, prove, to the satisfaction of the trier of fact, that there was no undue influence. In re Davis' Will, 14 N.J. 166, 101 A.2d 521 (1953); In re Hopper's Estate, 9 N.J. 280, 88 A.2d 193 (1952), supra; In re Fleming's Estate, 19 N.J.Super. 565, 89 A.2d 54 (App.Div.1952); Stroming v. Stroming, 12 N.J.Super. 217, 79 A.2d 492 (App.Div.1951) , supra; Gellert v. Livingston, 5 N.J. 65, 73 A.2d 916 (1950); In re Nixon's Will, 136 N.J.Eq. 242, 41 A.2d 119 (E. & A.1945); In re Heim's Will, 136 N.J.Eq. 138, 40 A.2d 651 (E. & A.1945); In re Bartles's Will, 127 N.J.Eq. 472, 13 A.2d 642 (E. & A. 1940); In re Smalley's Estate, 124 N.J.Eq. 461, 2 A.2d 321 (Prerog.1938), affirmed 126 N.J.Eq. 217, 8 A.2d 296 (E. & A.1939); Loveridge v. Brown, 98 N.J.Eq. 381, 392, 129 A. 131 (E. & A.1925); In re Tutty's Will, 87 N.J.Eq. 647, 649, 102 A. 833 (E. & A.1917); In re Cooper's Will, 75 N.J.Eq. 177, 71 A. 676 (Prerog.1909), affirmed, Harrison v. Axtell, 76 N.J.Eq. 614, 75 A. 1100 (E. & A.1910); In re Davis' Will, 73 N.J.Eq. 617, 68 A. 756 (Prerog.1908); In re Sparks' Case, 63 N.J.Eq. 242, 51 A. 118 (Prerog.1901); Barkman v. Richards, 63 N.J.Eq. 211, 49 A. 831 (Prerog.1901); Claffey v. Ledwith, 56 N.J.Eq. 333, 38 A. 433 (Prerog.1897); Boisaubin v. Boisaubin, 51 N.J.Eq. 252, 27 A. 624 (Prerog.1893); Carroll v. Hause, 48 N.J.Eq. 269, 22 A. 191 (Prerog.1891); Dale v. Dale, 38 N.J.Eq. 274 (E. & A.1884); Morgan, supra, 44 Harvard L.Rev., at p. 920, n. 21. In connection with this presumption, unlike other presumptions, the courts do not speak as to the burden of going forward with the evidence. However, we conclude, the moment this presumption is erected, both the burden of proff (which otherwise would have been upon the contestant, Gellert v. Livingston, 5 N.J. 65, 73 A.2d 916, 1950 supra) and the burden of going forward with proof, shift to proponent and are identical and coincident. To meet each of these assignments, the proponent must establish by the same quantum of proof--that is, by a preponderance of the proof--that there is no undue influence.

There are cases where the presumption of undue influence is so heavily weighted with policy that the courts have demanded a sterner measure of proof than that usually obtaining upon civil issues. That is the situation, for instance, where an attorney benefits by the will of his client, and especially where he draws it himself. In re Davis' Will, 14 N.J. 166, 101 A.2d 521 (1953); In re Hopper's Estate, 9 N.J. 280, 88 A.2d 193 (1952), supra; In re Heim's Will, 136 N.J.Eq. 138, 40 A.2d 651 (E. & A. 1945), supra. However, this is not such a case. Here, it is true, the circumstances which give rise to the presumption, are graver than those sometimes met with (it takes only 'slight' circumstances in addition to a confidential relationship to raise a presumption. Gellert v. Livingston, 5 N.J. 65, 73 A.2d 916, 1950, supra). Even so, the usual standard of proof suffices--that which puts upon proponent the burden of establishing by a preponderance of the proof that there was no undue influence. In a case where the evidence raising up the presumption of undue influence weighs heavily in the balance of proofs, the evidence upon which proponent relies must, if he is to succeed, be of greater weight.

There is another matter to be borne in mind. The...