McGeehan, Jayne and Wm. J. Brennan, Jr. The opinion of the court was delivered by William J. Brennan, Jr., J.A.D.
[10 NJSuper Page 210] The judgment of the Camden County Court, Probate Division, is not printed in appellant's appendix. Appellant's counsel stated at the oral argument he assumed the judgment was entered as a matter of course by the County Clerk and did not appreciate his responsibility in that circumstance to incorporate a copy of it in the appendix he filed with this court. This is not an acceptable explanation in face of the plain and unambiguous provision of Rule 1:3-1 which makes explicit the obligation of appellant that he " shall print as part of his appendix in all causes the judgment, order or determination appealed from or sought to be reviewed or enforced." In addition, this court has previously had occasion to direct the attention of the bar to this requirement. Dilione v. Vogel's
Department Store , 2 N.J. Super. 85 (App. Div. 1949). Appellant has supplied the court, since the argument, with a copy of the judgment entered March 23, 1950. We might well dismiss the appeal, but inasmuch as it was fully argued we shall accept it. We are not to be understood, however, after this further reminder, to be disposed to do so on all future occasions.
The appeal requires a determination whether the County Court properly affirmed the order of the Surrogate of Camden County admitting to probate the will, executed in due form September 8, 1949, of Joseph Gotchel, who died October 24, 1949, at the age of 78; appellant contends the will is void because of lack of testamentary capacity in the testator and because of undue influence alleged to have been exerted upon testator by his son, Peter Gotchel, the sole beneficiary under and executor of the will.
Joseph Gotchel, of foreign birth, came to this country in 1907. He lived in Camden and made his living as the proprietor of a neighborhood store in the dwelling which was his home. He spoke little English but used the Russian tongue and could speak and understand some Polish. He apparently prospered moderately; he owned his home and store and some other property.
Peter always lived with his father, as did his wife Harriet from the time of her marriage to Peter in 1935. Decedent had three other children, Harry, the contestant, and Laura, both of whom were married and maintained their own homes and survived him, and Rose, a daughter who had died August 19, 1949, just two months before the testator's death.
The proofs show that the testator was unquestionably enfeebled physically for some months before his death by the infirmities of old age; his decline was particularly rapid after the death of Rose, whose loss caused him great shock and grief.
Harry contends his father was of unsound mind when he executed his will on September 8, 1949, only twenty days after the death of Rose, and that, in any event, a confidential relation existed between Peter and his father creating a presumption of undue influence casting upon Peter the burden of
proof to show the absence of such influence, which burden, Harry argues, Peter did not meet.
The applicable legal principles are fully discussed and considered in Mr. Justice Ackerson's opinion for the Supreme Court in Gellert v. Livingston , 5 N.J. 65 (1950), and accordingly no elaboration of them is required. See also In re Anna Filo's Will, deceased , 9 N.J. Super. 146 (App. Div. 1950).
The testator is presumed to have been of sound mind when he executed his will. Harry completely failed to sustain the burden upon him to prove the contrary. The old gentleman was forgetful at times, untidy in his personal dress and habits, absent minded, mislaid things, committed errors in making change for purchases in his store, and on the occasion of his daughter's burial on August 24th seemed not to recognize members of his family and old friends; this last is plainly explicable by his grief in his daughter's loss; the other lapses are common to many, young or old, and certainly understandable in one of his years. "Old age and failure of memory do not of themselves necessarily take away a testator's capacity," Gellert v. Livingston, supra , 5 N.J. at p. 77. He was physically but not mentally enfeebled; the proofs show he was fully capable of comprehending his property, its disposition, the natural objects of his bounty and the significance of what he was doing when he made his will, which time, of course, is the point at which his testamentary capacity is to be tested.
Undue influence must be such as to destroy the testator's "free agency" and to constrain him to do what he would not otherwise have done in the disposition of his property. In re Neuman's Estate , 133 N.J. Eq. 532 (E. & A. 1943). The person asserting it normally has the burden to prove clearly its existence. It is not presumed solely from the existence of a confidential relationship between testator and beneficiary, although "slight circumstances" or indicia of undue influence in addition to a ...