Edwards v. Edwards.

say upon what subject the questions were addressed to the testator. He had been officious in suggesting the paper signed by his father three days before, and had had it drawn and saw that it was signed. It is in the highest degree probable that in that conversation he not merely ascertained, but suggested the contents of the will, at least in so far as the will contained a recognition of the previous paper signed by the testator. It is urged, however, that it is proven that after his wife's death the testator had repeatedly expressed a wish to make a new will, and there is no doubt that he had so expressed himself. He had so told Dr. Davis who dissuaded him, and Mr. Reeves who told him it was unnecessary. He had become possessed with the notion that his wife's death made it necessary to make such a will. When told otherwise, he abandoned his intentions, then would forget and speak of it again. Besides, I have no doubt he was influenced by a vague fear that Theodore E. would make trouble. He had distrusted Theodore E. as tricky, and disliked him as overbearing. As he became weak and his power of resistance diminished, his fear of future trouble between the children took possession of his debilitated mind. This trouble he feared from Theodore E.'s masterful disposition, and his fear was augmented as his mental powers decreased. He was in a mood to do anything suggested by Theodore E., and in this mood he signed the paper of March 17th, for the first time recognizing Theodore E.'s claim against him, and provided that the amount should be ascertained after his own lips were closed by death, and without providing how the arbitrators should be chosen. In my judgment, even if the testator's mind was such that he could have made a will, if he had done so uninfluenced, yet the circumstances show that he never would have made this will unless influenced by Theodore E. to a degree which, in view of the testator's mental condition, was undue.

CASES

ADJUDGED IN

THE PREROGATIVE COURT

OF

THE STATE OF NEW JERSEY.

OCTOBER TERM, 1901.

WILLIAM J. MAGIE, ORDINARY.
ALFRED REED, VICE-ORDINARY.

In the matter of the application for the probate of the last will and testament of GEORGE G. SICKLES, deceased.

63 233 a64 791

Sickles' Case.

Mr. James E. Degnan and Mr. Charles H. Ivins, proctors for the proponents.

Mr. Edmund Wilson and Mr. Frank P. McDermott, proctors for the caveators.

REED, VICE-ORDINARY.

George H. Sickles died February 12th, 1901, leaving a paper signed by him purporting to be his will. A caveat having been filed against its probate, the application for probate in solemn form has been heard.

The caveators object to the probate of the paper upon the grounds-first, of imperfect execution; secondly, of want of capacity, and thirdly, that the deceased was unduly influenced to execute this paper by his son Fred., who is named as executor, and Fred.'s wife, who are the principal beneficiaries. I think that the will was executed with the statutory formalities. The defendant left five children-Addie L. Davis, a daughter, Albert Sickles, John J. Sickles, Frederick Sickles and Homer Sickles, sons. Eight acres of land, upon which there was the homestead, worth between $4,000 and $5,000, two shares of bank stock, his household furniture, farm implements and stocks, constituted all his property. By the paper propounded, the two shares of bank stock are left to his son Albert, and all the rest of his property, real and personal, is left to his son Fred. and Euphemia, the wife of Fred., for their lives, and then to be divided between his other children. Fred. is forty-five years old. The age of Euphemia is not stated, but she is apparently no older than her husband. Each would have a life expectancy of nearly twenty-four years. There is therefore a double chance of an extension of the term beyond the period of the life expectancy of each.

The testator was, at the time of his death, eighty-one years of age. On October 16th last, within a month previous to the execution of this paper, he was stricken with paralysis which left one side of his body entirely useless. Thereafter he was unable to feed himself, to walk or to raise himself in bed. The testimony concerning his mentality after his paralytic stroke is, as usual, most conflicting. I think the weight of it is in favor of

Sickles' Case.

the proponents. The old man was undoubtedly a physical wreck, and his mind was naturally imparied, not only by physical decay but by the disease with which he had been stricken. He seems, however, to have had sufficient intelligence to comprehend the nature and the quantity of his property, as well as the number and identity of his children. The serious question in the case is, whether the paper propounded was the product of his own will.

The caveators insist that it was not, but was the outcome of the undue pressure upon his will, exerted by his son Fred. At the time of the execution of this instrument, with the testator lived Fred. and his wife, all his other children living elsewhere. Fred., while still living at home with his father, married in 1884. About 1886 he moved from his father's home at Navesink and with his family settled at Lower Squankum, where they lived for three years. Then Fred. seems to have returned to his father's house, leaving his wife and children with her parents in Lower Squankum. In March, 1891, the wife of the testator died, and on April 25th, 1892, Fred.'s family moved in, at the request, according to Fred.'s statement, of the testator, who said that there was no woman to take care of him. Fred., Euphemia and the testator, thereafter lived together until the death of the latter. Fred. and his wife of course took care of him during his sickness from October 16th, 1900, when he was stricken, to the time of his death, February 12th, 1901.

The will was written by a Mr. Johnson, who was called in to write the instrument by Fred. The position of affairs thus exhibited, is that of an old man with mind enfeebled by age and paralysis, under the surveillance and care of a son and daughterin-law, executing a will by which such son and daughter-in-law are made the recipients of practically all his property during the lives of his children. The circumstances require a full explanation from the beneficiaries of the circumstances surrounding the execution of this instrument, and after such explanation the question for solution is, whether the will was made in favor of Fred. and his wife as a voluntary recognition of services and care which they had rendered to him or a mark of affection for them and their family, or whether it was the