Jacobs, Bigelow and Jayne. The opinion of the court was delivered by Jayne, J.A.D. (Temporary assignment.)
[9 NJSuper Page 148] Anna Filo, of foreign birth, resided in this country for nearly three score
years. She was married and upon her death on January 1, 1949, she was survived by four daughters, Mary, Pauline, Anna and Catherine. All are married except Catherine. The decedent's husband had previously expired on May 6, 1948.
At the time of her demise Mrs. Filo resided on the ground floor of a two-family house in Carteret, New Jersey, with her unmarried daughter, Catherine. The apartment above was occupied by her daughter Anna Dolinch and family.
On October 25, 1948, Mrs. Filo executed with due formality a writing purporting to be her last will and testament, which was prepared by Mr. Elmer E. Brown, an attorney and counsellor-at-law of New Jersey, and witnessed by him and his secretary.
Mary, by means of a caveat, has protested against the probate of the alleged will for the reasons that (1) it was not duly executed; (2) undue influence and fraud were practiced upon the testatrix; (3) it was the result of mistake; and (4) that the testatrix lacked testamentary capacity. The judge of the Middlesex County Court resolved that the instrument should be admitted to probate, and the present appeal is addressed to that judgment.
There is not a feather of proof that the testatrix was deficient in the requisite testamentary mental capacity or that the necessary formalities pertaining to the execution of the instrument were in anywise disregarded.
The presumption of the law is in favor of testamentary capacity. Elkinton v. Brick , 44 N.J. Eq. 154, 15 A. 391 (Prerog. 1888); Johnson's Case , 80 N.J. Eq. 525, 85 A. 254 (E. & A. 1912). Any person capable of recollecting of what his property consists, and who by ties of blood or friendship have claims upon his bounty, and whose mind is sufficiently sound to enable him to know and to understand what disposition he wishes made of his property after his death, is competent to make a valid will. Clifton v. Clifton , 47 N.J. Eq. 227, 21 A. 333 (Prerog. 1890); Bennett v. Bennett , 50 N.J. Eq. 439, 26 A. 573 (Prerog. 1893).
The only controversial point that seems to have survived the inquiry conducted in the County Court is the insistence that the instrument was prepared and executed in consequence of the undue influence imposed upon the testatrix by one or both of her daughters, Anna and Catherine.
The following quotation from the opinion in In re Neuman , 133 N.J. Eq. 532 (on p. 534), 32 A.2d 826 (E. & A. 1943), is appropriate. "This court has had occasion from time to time to consider the question of undue influence and from these adjudications it is clear that an influence, if it is to be considered as undue, must be such that it has resulted in destroying the free agency of a testator in regard to the disposition of his property. The coercion exerted may be mental, moral or physical, or all three, but it must be such as to pre-empt the testator from following the dictates of his own mind and will and accepting instead the domination and influence of another. No exclusive formulary may be prescribed that will serve as a standard or norm to ascertain the presence or absence of what the law denominates undue influence in any given case. But each case must be decided according to the attending facts and circumstances."
The primary and ultimate burden of proving the use of undue influence devolves upon the party who alleges it. In re Craft's Estate , 85 N.J. Eq. 125, 94 A. 606 (Prerog. 1915); In re Babcock , 106 N.J. Eq. 228, 150 A. 219 (Prerog. 1930); In re Strang , 109 N.J. Eq. 523, 158 A. 489 (E. & A. 1932); In re Raynolds , 132 N.J. Eq. 141, 27 A.2d 226 (Prerog. 1942); affirmed, 133 N.J. Eq. 346, 32 A.2d 353 (E. & A. 1943).
In the present case Mary's accusation of undue influence seems to rest in part on the postulate that her sisters Anna and Catherine resided in the same house with the testatrix, hence motive and opportunity. Motive and opportunity to exercise undue influence of themselves do not constitute sufficient proof. It must be made evident that the motive was pursued and the ...