For modification -- Chief Justice Weintraub and Justices Francis, Proctor, Hall and Schettino. Opposed -- None.
This action was brought by the widow of A. Sherwood Risley principally to obtain his estate from defendant Elwood F. Kirkman, the sole beneficiary named in Risley's will, and alternatively to have the estate held in trust for her. She sought also to establish a dower interest in the home she occupied on Verona Avenue, Pleasantville, and also in real property owned by two corporations of which Risley was the stockholder. Kirkman acknowledged an obligation orally undertaken with Risley to provide for his widow for her life. Kirkman agreed too that the widow held a dower interest in the home. The trial court found that the gift to Kirkman was not the product of undue influence or any other wrong, but found Kirkman's obligation to support the widow was more expansive than Kirkman claimed. As to the question of dower, the trial court found she had no dower interest except in the home she occupied and is entitled to occupy for life under the oral agreement between Risley and Kirkman. The trial court denied counsel fees and costs to the widow.
We certified her appeal before argument in the Appellate Division. Except in the respects to be mentioned, the trial court's disposition of the matter was clearly correct.
The situation is quite unusual for the sole beneficiary was the decedent's attorney and the will was drawn by a partner of the attorney. There having been this confidential relationship and the disposition seeming on its face to be unnatural, the trial court placed the burden of proof upon Kirkman. The facts make it evident that the selection of Kirkman as beneficiary was the testator's independent decision and that to grant the relief the widow sought would have defeated the testator's plain intention.
The Risleys were married in 1908. After a few years Risley became interested in other women. In 1944 he started to see Hilda Birdsall, and in 1949 he left the marital home, never to return. He shared an apartment with Mrs. Birdsall at the time of his death. Nonetheless Risley always recognized his obligation to support his wife, and did support her at a modest level of which she apparently did not complain.
The record is clear that although Risley wanted his wife to be supported after his death, and indeed that this was his persistent, central purpose, he was equally adamant that the principal of his estate should not go to her. They had no children, and presumably Risley had no desire to provide for his wife's kin or any of his own, if he had any. This is evident from the fixed pattern of a series of wills under which the ultimate beneficiaries, after Mrs. Risley's needs were met, were business associates or friends to whom Risley felt attached.
The wills just mentioned are four in number and were all drawn by Kirkman's firm. By the first will, dated October 3, 1947, Risley conveyed everything to Virgil M. Conover, his then business associate, and to Kirkman, in trust, however, to pay the net income to Mrs. Risley during her life, the corpus to go upon her death to Conover, and if he should not be alive, then to Walter Mockel, a faithful yard employee of Risley's lumber company. Under the second will, dated August 30, 1950, Conover and Kirkman were again trustees, and Conover and Mockel were again
the remaindermen, but the lifetime interest of Mrs. Risley was stated to be $50 per week from net income, a right to occupy the home on Verona Avenue, and to have paid "all maintenance, costs, charges and repairs for said home." The third will, dated October 15, 1953, provided for Mrs. Risley on the same terms, but there was an immediate gift to Kirkman of all of Risley's shares of stock in two corporations, subject to Mrs. Risley's use of the Verona Avenue home, the corpus of the trust to go to Conover on Mrs. Risley's death, and if Conover should not be living, then to Kirkman. The fourth and final will, dated September 17, 1954, left everything to Kirkman. Discord had developed between Risley and Conover, and this will was made two days after Risley had sold his interest in the lumber company to Conover. This will remained unchanged although Risley lived another twelve years.
It is obvious from the foregoing account that Mrs. Risley could not gain the corpus if the last will were found in its entirety to be the product of undue influence, for unless all of the wills could thus be disposed of, someone else stood to take. Hence her attack was not upon the will itself but upon the gift to Kirkman, either to have him declared a constructive trustee for her benefit or to have the gift to Kirkman fail to the end that the gift, consisting of the entire estate, might pass by intestacy. But there is no basis whatever to say the testator intended his widow to take all and that Kirkman intercepted it. On the contrary, it would have been repugnant to Risley's consistent purpose that his widow be cared for during her life but that the remainder go to others he chose to be his ultimate beneficiaries. The trial court correctly refused to frustrate the testator's intent.
We are however troubled that the last will, unlike the prior ones, did not spell out, or even mention, the widow's lifetime interest. That Risley had implicit faith in Kirkman, we do not doubt. The record makes this abundantly ...