Freund, Smith and Leyden. The opinion of the court was delivered by Leyden, J.s.c. (temporarily assigned). Freund, J.A.D. (dissenting).
This appeal is from the judgment of the Essex County Court, denying probate of the alleged last will and testament of William G. Blake, deceased, upon the ground that the said paper writing was a product of undue influence exercised over the deceased by Louis J. Beers.
Deceased, William G. Blake, a bachelor, died on July 23, 1954, at the age of 66 years, leaving him surviving two nieces, one the caveatrix, and a brother. He had lived alone in a small single room on the third floor of a rooming house at 19 Warren Place, in Newark, for the last 16 years of his life. For 10 or 12 years he had suffered from diabetes mellitus with complications such as gangrene and a "bleeding toe," and one leg had been amputated. His comforts and activities were circumscribed by reason of the disease; he was lonesome and starved for friendship and expressed gratitude for favors and little things done for him, often saying, "No one cares for me because of my condition." During the last year of his life he was confined in hospitals for varying lengths of time on five or six separate occasions, and on July 20, 1954 he suffered an attack and was taken to the City Hospital where he died on July 23 of cerebral vascular accident (diabetes mellitus). He had been employed as an inspector at the Ronson Art Metal Works in Newark, and upon his retirement was employed occasionally as a timekeeper at the Robert Treat Hotel. He executed the alleged last will and testament on June 7, 1954. Louis J. Beers, a counsellor-at-law of this State, the proponent herein, was the scrivener of the will and is named sole beneficiary and executor thereof. The will was executed in the office of the proponent and the attesting witnesses were his grandnephew, Edward J.
Beers, Jr., who shared the office with him, and the secretary of an attorney in an adjoining office. The estate is valued at about $17,000.
On July 28, 1954 Florence E. McConnell, a niece of the testator, filed a caveat against the probate of the will upon the grounds of improper execution, lack of testamentary capacity, and undue influence exercised by Beers upon decedent. The trial court found, without hesitation,
"* * * that the decedent, who was ill in mind and body at the time of the execution of the will, was the subject of undue influence; or at least, that the proponent has not rebutted such presumption and that the will should be set aside. * * *"
There was no finding by the trial judge on the question of testamentary capacity, and though caveatrix had no proof of improper execution, formal proof was taken to the court's satisfaction and the will marked as an exhibit. We have reviewed the manner in which the will was executed and agree with the conclusion of the trial judge that the will was properly executed and proved.
On the question of testamentary capacity the case is open, since there was no finding on the point and we assume the trial judge, in making no finding, impliedly determined the deceased possessed testamentary capacity. We have examined the proof on this point and are convinced that the deceased, at the time of the execution of the will, had the capacity requisite to a testamentary disposition of his property. We are therefore left with the remaining question: "Does the proof rebut the conclusion of fact that Beers unduly influenced the decedent in the making of the will?"
Our difficulty is not with the law, but with its application to the facts as presented by the record.
The law touching the subjects of testamentary capacity and undue influence is settled and so well defined we will not attempt to change or vary the carefully considered language used in the precedents concerning the subject matter.
"It is true that competency to execute a will is a presumption of law and that the right of testamentary disposition may be exercised
by one of only moderate mentality. Nevertheless a degree of mentality is required. The test of testamentary capacity in this state has been said to be that the testator can comprehend the property he is about to dispose of, the objects of his bounty, the meaning of the business in which he is engaged, the relation of each of these factors to the others and the manner of distribution set forth in the will." In re Heim's Will , 136 N.J. Eq. 138, at page 148 (E. & A. 1944).
"Not all influence is 'undue' influence. Persuasion or suggestions or the possession of influence and the opportunity to exert it, will not suffice. It 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 worldly assets. The coercion or domination exercised to influence the testator may be moral, physical, or mental, or all three, but the coercion exerted upon the testator's mind must be of a degree sufficient to turn the testator from disposing of his property according to his own desires by the substitution of the will of another which he is unable to resist or overcome. * * * Each case of this nature must be governed by the particular facts and circumstances attending the execution of the will and the conduct of the parties who participated in order to determine if the coercion exerted was 'undue.'" Gellert v. Livingston , 5 N.J. 65, at page 73 (1950); In re Davis' Will , 14 N.J. 166 (1953).
Since the presumption is that the deceased was of sound mind when he executed the will, the burden of proving undue influence is ordinarily upon the person asserting it and it must be clearly established. Gellert v. Livingston, supra. However, "if a will benefits one who stood in a confidential relationship to the testator and there are additional circumstances of suspicious character, a presumption of undue influence is raised and the burden of proof is shifted to the proponent." The relationship of attorney and client is such a relationship, but that relationship, when it is genuine and sincere, raises no implication of fraud or undue influence. In re Hopper's Estate , 9 N.J. 280 (1952); In re Davis' Will, supra.
"Where undue influence is presumed in testamentary disposition from a relation of trust and confidence the presumption is overcomeable by showing that the gift was well understood, and that no pressure was exercised." In re Bottier's Estate , 106 N.J. Eq. 226 (Prerog. 1930); In re Bartles' Will , 127 N.J. Eq. 472 (E. & A. 1940); In re Hopper's Estate, supra.
The proponent Beers conceded early in the trial below and on the argument here that the presumption of undue influence attached, and the burden of going forward with the proof shifted from the caveatrix to him. Therefore, what we must look for is proof that Beers did not exercise influence, either moral, physical or mental, or all three, upon the decedent's mind to a degree sufficient to destroy his free agency within the definition, supra; in short, that Beers did not substitute his mind and will for that of the decedent by satisfactory and believable evidence and thus offset, overthrow, neutralize or rebut the factual conclusion of undue influence. In re Morrisey's Will , 91 N.J. Eq. 480 (Prerog. 1920); In re Bottier's Estate, supra.
Louis J. Beers is 78 years of age and has practiced law in New Jersey as an attorney and counsellor since 1901. He and Stafford Blake, a relative of decedent, were childhood playmates. About 25 years ago decedent began visiting Mr. Beers at his law office occasionally. They discussed books and other writings, their families and old times. Decedent seemed to enjoy the sociability and his talks with the other occupants of the office and often spoke of Mr. Beers as his friend and of his fondness for him. They did not visit each other at their respective homes, eat together or exchange gifts. There is nothing in the record to indicate any close association, domination or control by Beers over the decedent such as is usually found in cases involving undue influence. In 1947 Mr. Beers was the solicitor for decedent in a partition suit, Blake v. Blake , wherein caveatrix McConnell, as the administratrix of the Blake estate, was defendant. This litigation lasted about two years and the care and management thereof seems to have been under the direction and control of a Mr. Hart, who was associated with Mr. Beers in the practice of law. In October 1949 decedent named Mr. Beers the ...