Bailey v. Stiles , 2 N.J. Eq. 220 ( 1839 )

The Chancellor.

This is an important cause. The amount of property involved is large, the questions arising new with us, and some of the charges made against one of the defendants-of a very serious and distressing character. My desire to come to a just and sound, conclusion, has been in due proportion to. the'magnitude of the case.

The complainants are children (five sons and one daughter) of Benjamin Bailey, deceased, late of the county of Morris, in this state. They allege, that their father at the time of his death was seized in fee of a large real estate, which-he devised to them in the manner therein stated, by his last will and testament, duly executed in,the form prescribed by the laws of this,state. The will is said to bear .date on the twenty-first of May, eighteen hundred and -twenty-nine, and the testator to have died on the sixth of June, eighteen hundred and thirty-three. They further allege, that their father kept his will locked up in' a desk in his own house until his death, immediately after which the lock of the desk and of the drawer -in which the will was kept was bro-en open, and the will taken out and carried away. They further allege, that at the funeral of their father, their sister Delia Stiles, under pretence of sickness, refused to go to the grave, but remained at -the dwelling, and then and there, as they are informed and believe,'."broke open the said desk; and that their said sister, with the connivance of her husband, William Stiles, in this manner clandestinely took the said will, and has either destroyed pr suppresses and conceals the same. The bill, after stating this charge of spoliation, prays that the defendants may ■be compelled to produce to this court the said last will and testament, of that the tr,ue contents thereof, in case it.be lost, destroyed or suppressed, may be ascertained and established by this court; or, that the complainants may be decreed to hold the several tracts of land devised to them according to the will, that the defendants may be compelled to execute to them releases of all their right or claim to the same, and be perpetually enjoined from setting up any further claim or demand for the said lands, or flom prosecuting any action for the recovery thereof, and that the title of the complainants to the said lands may be quieted and put at rest.

The defendants are two of the testator’s daughters with their husbands, and the children of a deceased son, to whom the testator gave no part of his real estate. These defendants met this case in the first instance by two demurrers, one of them denying the whole equity of the bill, and the other as to so much of the bill as charged upon Mrs. Stiles the spoliation of the will, claiming the protection of the court as to Mr. and Mrs. Stiles from answering, on the ground that such answer might criminate them. The first demurrer was overruled by the court, and the last sustained so far as relates to Mr. and Mrs. Stiles. The effect of this •decision was to establish in this very case the jurisdiction of the court upon the facts stated in the bill, so far as those facts were well pleaded, and to exempt Mr. and Mrs. Stiles from answering so far as they are charged crimiualitcr, and that without prejudice!. The question of jurisdiction was considered on the present argument, and properly so, as having been settled by the decision on the first demurrer, which brought up the whole case made by the bill for discussion and settlement. In a case of spoliation the power of this court is too well settled to admit of further question. 1 Madd. Ch. Prac. 325-6 ; 3 Atkyns, 359 ; 2 Vernon, 380, 561; 1 Vesey, sen. 387; 1 P. Wms. 731; 2 Ibid. 748 ; 2 Story’s Eq. 671.

Taking the power of the court to be established, I proceed to examine and see how far the complainants have sustained themselves by evidence.

1. The first question, and the one which lies at the foundation of all the rest, is, whether Benjamin Bailey left at his death any last will and testament. I do not mean here to speak of the mode of execution, but did he leave any instrument purporting to be his will? That he made .a will in the year eighteen hundred and twenty-nine, there can be no doubt j it has not .been controverted by any person. John Johnson testifies, that he witnessed the testator’s will a few years before his death. It was drawn by David Thompson, witnessed by him, by Mr. Johnson the deponent, and by Ephraim M. High. William Bailey one of the complainants, and Mrs. Bailey the testator’s widow, he says, were present. Mrs. Bailey the widow, (who has in legal form relinquished all claim under the will and elected to take her dower at common law,) confirms the statements made by Mr. Johnson as to the execution of the will, and agrees with him in most of the attendant circumstances. The answer of the defendants admits, that in or about the year eighteen hundred and twenty-nine, without meaning to be particular as to ■time, they heard that the testator had made a will. There is no evidence that this will-was ever cancelled, or in any way modified. Mrs. Bailey says, the testator kept his will in a desk in the ■entry; it was the same desk in which, he kept his most valuable papers, such as bonds .and notes. She says she saw' the will in her husband’s last sickness. He requested that it should be brought,to him, and proposed that his son William should take ■it home with him, and actually gave it to him for that purpose, but afterwards changed his mind, saying it might not look well to take it out of the house, and it was returned to the desk again. . This was only three or four days before the testator’s ■death. He died on Friday, and on Saturday, the day after, the widow says she saw the will. This was the day of the funeral. -On Monday afterwards she went.to the desk and found it broken open. The lock had been pried off. There were marks on it showing that force had been applied; and the will was gone, and she has never seen it since. Upon this evidence it is sufficiently proved that there was a will in existence at the testator’s death.

2. The second, and by far the more difficult question to settle, relates to the factum of the execution of this will. The defendants insist, that even if a will is proved to have been made, yet there is no sufficient proof that it was executed in such a manner as to pass real estate under the laws of this state, and especially under the construction placed upon those laws by the supreme court. They deny that the testator signed the will in the presence of the subscribing witnesses. The witnesses, it will be remembered, are David Thompson, who drew the will and who is dead, Ephraim M. High, who has removed to the state of Ohio, out of the jurisdiction of this court, and John Johnson. Mr. Johnson is the only subscribing witness who has been sworn, and before proceeding further it will be proper to dispose of an objection taken by the defendants to any relief being afforded the complainants until they shall have examined all the subscribing witnesses. It is contended that it is a rule of this court, in all cases, that all the subscribing witnesses must be examined on proving the will against the heir. To maintain this position, the case of Bootle v. Blundell, in Cooper’s Equity Rep. 136, is much relied on. That was an issue of devisavit vel non, directed by the court. After examining one of the subscribing witnesses, the complainant rested his case, saying to the defendant that he would make him a present of the other two. Upon a motion for a new trial, the chancellor declared it to be necessary that the complainant should call all the subscribing witnesses before a will could be established in that court. These witnesses lie considered not as the witnesses of either party, but of the court. The witnesses appear to have all been in court, and in such case, or what is the same thing, when they are within the power of the court, they must all be examined. I have no doubt that this is the settled rule. But there are exceptions, and must necessarily be, to the rule requiring the production of all the witnesses ; and it so happens, that the two witnesses not produced in this case, come within the exceptions made in the books to the general rule; one died, and the other removed beyond the jurisdiction of the court. The case first referred to will be found re-potted in 19 Vescy, 505, and these very exceptions to the general rule are there stated. See also Seaton’s Decrees, 62; Lord Carrington v. Payne, 5 Vesey, 411; Billing v. Brooksbank, 19 Vesey, 505 ; Chase v. Lincoln, 3 Mass. 236. The like exception to the rule obtains where the witness becomes insane, or has not been heard of .for many years and cannot be found. In the case of a' witness being out of. the jurisdiction of the court, I am aware there have been different opinions entertained'in different courts, but I think the true rule is to consider it as coming within the exceptions. Such, as it appears to me, is the weight of authority, and'it is more consistent with principle. What power has the complainant over a witness in another state ? He cannot compel his attendance either before this court or before a commissioner in- the state where he may happen to reside. In the case cited from 5 Yesey, it was made a point whether a com-: mission should not be sent abroad to examine the witness, and it was held sufficient to prove his hand-writing. Had the defendants desired so, to do,- they would have been- entitled to- také out,a commission to examine this witness, but neither party was bound to do so if, they were willing to submit the case upon the other evidence. We must, then, see how the proof stands as taken.

John Johnson, a subscribing witness, testifies, that he was present at the execution of the will. He was- sent for for that' purpose. William Bailey the son, Mrs. Bailey the widow, David Thompson, Ephraim M. High and the witness, were present. The testator put his hand on the seal and acknowledged that he signed, sealed and published it as his last will and testament. He was of sound mind. Mr. Thompson and the deponent signed their names, and Mr. High made-his mark,- as witnesses, in the presence of the testator. He saw Mr. Thompson sign his name and Mr. High make his mark.- As to the testator’s signing the will in the presence of- the witnesses, the deponent answers, he does not recollect seeing him sign his name.- He thinks the testator’s name was signed to the will when he first saw it. This witness gives a very rational account of the whole matter, and makes out a complete execution of the instrument, except as to the signing by the testator, and upon that point he declares he has no recollection of seeing him sign his name. This is the most difficult part of the case. The decision on this subject in the supreme court, requiring the testator to sign his name in the presence of the witnesses, I shall adhere to as the law of this ■ court. The question belongs peculiarly to that court, and its decision must control this. This witness, therefore, fails to make out an essential part of the proof, and without further evidence the case must fail.

But we have another witness who was present, although not a subscribing one, and her evidence becomes very material. This witness is the widow, Mrs. Deborah Bailey. She is the mother of all these children, and she has released all her claim under the will; she is therefore a competent witness, and for aught that appears worthy of credit. She recollects the circumstance of her husband’s signing the will. She was sitting behind him, holding him up in bed at the time he signed it. At the time he wrote his name to the wiil, she swears positively that the subscribing witnesses were present. She also proves the reading of the will to the testator, before the witnesses came in.

These two witnesses, Mr. Johnson' and Mrs. Bailey, it is manifest from the depositions, have been pressed by counsel on their examinations very much on this point. It will be seen that they have placed their answers to this part of the case in different shapes, but from a careful and fair view of it all I can give to it no other meaning than this: Johnson answers negatively that he does not recollect seeing the testator sign it, ánd Mrs. Bailey swears affirmatively that he did sign it in the presence of the witnesses. The rule of law is clear in such case; the affirmative witness must prevail. There is one consideration here worthy of being noticed. The will was executed in the year eighteen hundred and twenty-nine, and the witnesses were examined in eighteen hundred and thirty-five. A period of six years had passed, and it would be no very strange occurrence that even a subscribing witness should not remember every thing that took place at the time of the execution. Mr. Johnson, although evidently a very accurate witness, and, judging from his testimony, a cautious and just man, had no interest ok feeling in this transaction. The wife of the testator was his nurse, was present, held him up in the bed, and was greatly interested, no doubt, at the time, in all that-was passing. This witness not'only swears that her husband signed the will in the presence of the witnesses, but states all the circumstances. While the proof is not- as full on this point as I could have wished,-! yet by the rules of law as well , as from the whole tenor- of the evidence, I must declare the proof in the case to be, that the will was signed by the testator in the presence of the witnesses.

The next matter relates to the fact of spoliation-.. Was this will in fact, as charged,, fraudulently taken away- ?' That there was a will made, and that it,was kept by the testator in a desk in his -house, is clear.. The widow swears that it was in the desk during her husband’s last sickness. ■ Only three or four days before his death he requested to have it, and she got the key and-her son William went and - got the will and brought it to his-father. He then told William to take it home with him and keep it. As William- was going out of the door he changed his-mind, and told him it would not look well to have it taken out of the house, and desired him. to put it back again. She also* swears that she saw the will again in the desk the day after her husband’s death. This evidence is uncontradicted,. and there is-no proof in the whole case of any cancellation by the testator, or that he ever had any intention of so doing.- This was on-Saturday, the very day the testator was buried. On Monday morning thereafter the will was gone, and all the witnesses agree' that there was- on the desk marks of its having been broken open. The charge is, that Mrs. Stiles, one of the daughters, for whom-a small provision only was. made by the will, while the family had gone down to the grave- to bury her father, perpetrated the act. This is a serious charge, and should be sustained by the clearest evidence before it can be believed. The mind revolts at-so -shocking a transaction. She did not go to the grave; and one witness only, [fa P. Goble, is brought to make out the charge. He swears that while the family and friends went to the grave he was engaged in carrying choirs up stairs, and while standing at the head of the stairs he saw this daughter, with a trowel, break open this desk and take out a paper. I do not know this witness, nor has his general character been questioned in the evidence; but he stands alone, and there are many grave considerations that enter into the question, so far as the court is concerned, in founding their judgment upon his evidence. He may indeed speak the truth, and yet he may be so placed by his own conduct, and by the attendant circumstances, as to forbid acting upon his statement. The character of the charge, the time when the transaction is alleged to have taken place, his indiscretions, if nothing more, in his conversations with others respecting it, are all open and must be duly weighed and considered. To stamp with infamy the reputation of a party, with the possibility of her innocence, would be a painful reflection. There is much evidence going to show, that in the position in which he stood on the stairs the witness could not have seen what he stated he did see. By varying the position a little, other wit.nesses declare that he could have seen. One witness, Nancy Gonway, swears that she remained at the house while the -mourners went-to the grave, and she saw nothing of the transaction ; and yet it is quite strange that she has no recollection of seeing Goble there at that time at -all. Another witness, Stephen Guerin, swears that he had a conversation.with Goble, and asked him if he had seen Mrs. Stiles at the desk at the time of the funeral, to which Goble replied he had not. Guerin then told him ■what he had .heard he had said in the neighborhood about Mrs. Stiles taking the will. He said it was a false report; that he had said nothing about it, and knew nothing about it. Another witness, Samuel G. Crowell, says he spoke to Goble about Mrs. Stiles breaking open the desk, and about what he had heard -he said she had done. Goble said all he knew about it was of no consequence. Afterwards he told Crowell he knew no more about it than he did.

Upon such a state of facts, I will not say that Mrs. Stiles carried away .this will. The evidence is not satisfactory. But I do not consider it necessary, in this case, that I should be able to designate the person who took away this will, if it satisfactorily appears that it has been carried away fraudulently by any person. I have no ¡doubt, and can have none after the evidence of Mrs. Bailey, that a spoliation has taken place. The will was in the desk after the testator’s death; it is now gone, and marks of violence are on the desk, showing the lock to have been broken open. It would be a strange failure in the administration of justice, if the devisees under a will should lose their' estate when it •was clear that a will had been carried .off, from the mere fact .that they could not .detect,the robber. ' '

The only remaining point is to ascertain the contents of the will. Here, I must confess, there has appeared less difficulty on ■investigation than I feared at the time of the argument. The testator had five sons and three daughters living at his death, ¡and. two grandchildren, who were’the objects of his bounty. These son's were men approaching .the middle of life. The .eldest was forty years of age. They all labored under their father, and he took all the profits. They all lived ait home' except William. The testator was also the owner of several distinct farms and places known by certain names. Mrs. Bailey says ¡she heard the will read by Mr.’ Thompson to her husband, and she recollects th,at he gaye to William the grist-mill, saw-mill, and .the Hamilton lot. To Henry he gave the Nesbit farm and half .the Swamp-meadow. To Mills he gave the old Bailey farm, the Hawkins lot, and the Sand-spring-lot. To Charles he gave the Yanhouten place. To Ebenezer he gave the homestead and h.ajf ¡the Swa,mp-meadow'. To Caroline he gave the Glasby farm and one hundred-dollars. To Mrs. .Stiles and Mrs. Bockover, four hundred dollars each, and a legacy of one hundred and fifty dollars to the two daughters of her deceased sou John.

John Conway testifies, that he was a neighbor of the testator, and had a conversation with him about a month before his .death in relation to his will. He told him that he had made a ¡¡will, and went pn and specified the different parcels that he had given the several children, precisely according to the above statement of Mrs. Bailey.

But there is far more certain evidence than even this of the contents of the will. David Thompson, who drew the will, it appears from Mrs. Bailey’s evidence, wrote two papers as she thinks, and took the first one he drew home with him. He said it was customary to do so, for fear one might be destroyed. Mr. Thompson is dead, and his brother Stephen Thompson, who is his executor, has produced a paper, which he swears he found among his brother’s papers, which is made an exhibit, and is marked Exhibit M. 1, on the part of the complainants. This paper, and the endorsement upon it, are proved to be in the hand-writing of David Thompson ; and by it we find the very same disposition made by the testator of his property, as stated in the evidence of Mrs. Bailey and of Mr. Conway. On this paper is this memorandum, in David Thompson’s hand-writing: “ Benjamin Bailey — outlines of will, Friday, May 21st, 1829; given by him to me; I wrote the will, and it was executed — witnesses, David Thompson, — Johnson,---High. High made his mark.” Comparing this memorandum with the whole evidence, there can be no reasonable doubt that this paper contains the wall of the testator. All the particulars agree; the time, the names of the witnesses, the person who drew the papers, and the fact that High, instead of writing his name, made Ms mark.

In looking at this draft of the will, there is no difficulty about the real estate. The devises are all plainly made, and the same js true of the specific legacies. There is some embarrassment in the clause disposing of the residue of the personal property. The clause on this subject directs it to remain in the family for six years, and then to be divided equally among the four youngest sons, Mills, Henry, Charles and Ebenezer. But there is a bracket enclosing at the side this clause, with the words written, “ this altered and at the foot of the writing are added the words, “ must remember to divide the peisonal property.” As the first clause, which was to be altered, gave the residue to certain of the children in exclusion of the rest, and the memorandum at the foot declares that the personal property shall be divided, it can mean nothing else, upon any fair construction, than that it should be divided among all his children, instead of a part, as was at first his intention. This I beliéve to be the true meaning of the clause., and with that construction the whole instrument is perfectly intelligible and plain. At all events, such a view, inasmuch’ as it favors the defendants, cannot be complained of by them. On this part of the case I .refer to the opinion of justice Baldwin, of the supreme court of the United States, in Askew v. Odenheimer, 1 Baldwin's Rep. 390.

Entertaining these views of this case, it remains to be considered what relief can be afforded by this court'. The court may grant relief in three’ ways : by making the injunction perpetual, restraining these defendants from prosecuting.any suit to disturb the complainants in the possession and enjoyment of their respective tracts; by directing a release on the part of the defendants of all their-right iri said lands to.be made to the complainants; or by a decree establishing the will in all its pans. 2 Vernon, 441; 1 Dickens, 32; Seaton's Decrees, 63. The last should be adopted whenever the contents can be ascertained; and in the present case, being satisfied on this point, I shall adopt that course.

The writing contained in Exhibit M. 1, on the part of the complainants, must be taken as the contents of the instrument-disposing of the residue of the personal property, after paying the specific legacies, among all the children of the testator living ,at Ms death. -As the .spoliation is not proved to have been committed by the defendants, or any of them, the costs on' both sides must be paid out of the testator’s estate.

It has been no easy task to settle all the points of this case. I have done so to the best of my judgment, and, I hope, in a manner consistent with the truth and justice of the case. There is one view which pervades the whole; that the testator left a will which has been fraudulently disposed of, and that the complainants should not lose the estate which their father intended for them for the want of that aid which every citizen is entitled to have from the judicial tribunals of his country. It was, indeed, said at the hearing, that no great harm could result from a decree in favor of the defendants ; it would only leave the case to the provisions of the law, which disposed of the property equally among all the children. But this is not the true view of this case. Every man has a right to dispose of his property by his last will as he pleases, and the slightest encouragement given to the destruction of these instruments, from the supposed inability of the power of the court to reach the case, would be in the highest degree dangerous and impolitic.

Decree accordingly.