On appeal from the Appellate Division of the Superior Court.
For reversal -- Chief Justice Vanderbilt, and Justices Heher, Jacobs and Brennan. For affirmance -- Justices Oliphant, Wachenfeld and Burling. The opinion of the court was delivered by Heher, J.
[21 NJ Page 54] The issue here concerns the legal sufficiency of a paper writing bearing date June 7, 1954, purporting to be the last will of William G. Blake, who died July 23 ensuing. It is conceded there was due execution of the instrument as a testamentary disposition of an estate amounting to $17,000. In the Probate Division of the Essex County Court and the Appellate Division of the Superior Court the caveatrix, Florence E. McConnell, the deceased's niece, pleaded the want of testamentary capacity and, on the contrary hypothesis, the procuring of the will by undue influence exercised by the lawyer-draftsman, Louis J. Beers, who was named as sole beneficiary and executor.
The County Court, Judge Cafiero sitting, refused probate. The Appellate Division of the Superior Court, Judge Freund dissenting, reversed the judgment and directed probate of the instrument, holding that the deceased had testamentary capacity and the "proponent's evidence completely rebutted the presumption of undue influence." 37 N.J. Super. 70 (App. Div. 1955). The case is here on an appeal of right taken by the caveatrix under Article VI, Section V, paragraph 1(b) of the 1947 Constitution.
There is no contention now of testamentary incapacity when the will was made. The brief tendered by the caveatrix does not raise the question; and it was not presented on the oral argument. The insistence is that since "the proponent of the will is an attorney who drew the will and is also the sole beneficiary thereunder," there is a presumption of undue influence and the burden of refuting it has not been sustained.
It is said in argument that "all reasonable presumptions and intendments consistent with the record will be indulged in favor of the validity of the judgment" denying probate, and, moreover, the "credibility of witnesses is a subject matter wholly within the province of the trial judge, and as long as there is testimony in support of his factual findings it should not be disturbed." "Testimony neutralizing the presumption," it is affirmed, "is not sufficient; the presumption must be completely overcome and, to achieve that end, the testimony must be clear, impeccable and convincing."
The burden of proof in the sense of the risk of non-persuasion rests with the contestant who would deny probate for undue influence; and, though the burden in this regard does not shift where there is a confidential relationship, such as the relation of attorney and client between the draftsman and sole beneficiary of the paper writing tendered for probate and the maker of the instrument, yet in such case circumstances suggestive of inequality, unfairness, imposition, or overreaching give rise to a presumption of undue influence, and there is cast upon the proponent attorney-beneficiary the burden of coming forward with evidence in quality and force sufficient to dispel the presumption. In such a confidential
relation "slight circumstances" may shift the burden. In re Davis' Will, 14 N.J. 166 (1953); In re Hopper's Estate, 9 N.J. 280 (1952); Gellert v. Livingston, 5 N.J. 65 (1950); In re Heim's Will, 136 N.J. Eq. 138 (E. & A. 1945); In re Nixon's Will, 136 N.J. Eq. 242 (E. & A. 1945); In re Neuman's Estate, 133 N.J. Eq. 532 (E. & A. 1943); In re Bottier's Estate, 106 N.J. Eq. 226 (Prerog. 1930); In re Morrisey's Will, 91 N.J. Eq. 480 (Prerog. 1920); In re Cooper's Will, 75 N.J. Eq. 177 (Prerog. 1908).
Against a beneficiary "having a testator under his control, with power to make his will the will of the testator, especially in a case where the testator has made an unnatural and unjust disposition of his property, the law wisely presumes undue influence, and puts upon the beneficiary the burden of showing, affirmatively, that when the testator made his will he did not exercise his power over the testator to his own advantage and to the disadvantage of others having an equal or superior claim upon the bounty of the testator." Carroll v. Hause, 48 N.J. Eq. 269 (Prerog. 1891).
But in the very nature of the term, influence is not undue in this regard unless it constitutes moral or physical coercion destructive of free agency. Even persuasion, much less mere suggestion, is not undue influence either in the legal or the moral sense if freedom of will remains intact.
"It is not the influence acquired by kind offices, or even by persuasion unconnected with fraud or contrivance; though if persuasion or other means of influence be connected with fraud, it may admit of a far different consideration. Fraud may be employed as means of influencing, and may afford ground for impugning a testamentary act no less than force, and the peculiar relation between the testator and the party benefited, as client and attorney, &c., when the former was weak and liable to imposition, has been held to furnish strong presumptions in regard to undue influences.' Den ex dem Trumbull v. Gibbons, 22 N.J.L. 117, 158 (Sup. Ct. 1849).
But to "attempt to persuade a testator, however, is treading upon dangerous ground, for the result may be that he will be led to assent to that which, of his own free will, he would
not have assented to. It is impossible to distinguish, by a fixed rule, between acts which are within the bounds of legitimate influence and acts which make the influence undue. Similar acts may be trifling and of no importance in the case of one person, and overmastering in the case of another. Their effect must depend upon the relations between the parties, and the character, strength and condition of each, and must be determined by the application of sound sense to the facts of each given case." Elkinton v. Brick, 44 N.J. Eq. 154, 166 (Prerog. 1888).
A will cannot be set aside merely because it is "unequal or unjust." "If capacity, formal execution, and volition appear, the will of the most impious man must stand, unless there is something, not in the motives which led to the disposition, but in the actual disposition, against good morals or against public policy." Den ex dem Trumbull v. Gibbons, cited supra, 22 N.J.L., at page 153. If the animus testanti be established, then fulfillment of the declared testamentary purpose becomes a peremptory judicial duty, unless the requisites of form and execution have not been met. If there be mental capacity and freedom of will, the testamentary disposition prevails as the exercise of a right of ancient origin confirmed and regulated by the Statute of Wills. It is fundamental that whatever may be the quality and scope of the legislative power to regulate and control the testamentary transfer of property, there is no judicial superintendence of the reason and wisdom of the testamentary act, save as it offends against positive law or imperative public policy. See United States v. Burnison, 339 U.S. 87, 70 S. Ct. 503, 94 L. Ed. 675 (1950). Undue influence is in a sense related to capacity, for one under constraint destructive of free will is not possessed of capacity for the particular testamentary act. The ...