son would, without such influence, in some way exerted, strip himself or herself of all means of support or comfort. When in health and strength, Mrs. Morton was not guilty of any such folly. When she had the mind to see what her necessities were or might be she took care of her resources and so provided for her wants; but when age and weakness overcame her, and the time of her greatest need had also come, she lost sight of her former care and judgment, and allowed all to go, by one stroke of the pen. I say in some way her weakness must have been taken advantage of.

But Peter C. not only lived in the house with

as per codicil." Soon after this testator died, and Garret filed a caveat against the probate of the codicil, on the ground that his father was induced to make it through undue influence. The will and codicil were both admitted to probate, the latter in the condition in which it was before the alteration. Held, on the evidence, that the codicil, as well as thewill, was properly admitted to probate.

(Decided March 5, 1887.)

APPEAL from a decree of the Monmouth
Orphans' Court, admitting a will and cod-
to probate. Affirmed.

The facts are stated in the opinion.
Messrs. R. L. Lawrence and M. W.
Meagher, for appellant.

Messrs. E. W. Arrowsmith and A. C.
Hartshorne, for respondents:

her, but he and his brother, John L., had beeh
made her attorneys. She had all her estate de-icil
livered to them. Thus, besides their being the
children of her dead sister, there was this con-
fidential relation established. Their relation to
her first gave them great control over her, in
her decrepitude. Achieving this success, they
procure a power of attorney from her, enabling
them to take charge of her affairs. When this
has been accomplished, it seemed easy enough
to persuade her that she had no further use, in
her old age, for what her prudence and frugal-
ity had treasured. But when they accepted that
power of attorney, they accepted a trust, and
the law will hold them to the strictest account.
See Bigelow, Fraud, 223, and cases cited.

As to the responsibility of the trustee, and as to where the burden lies, see Jones v. Lloyd, 6 West. Rep. 35.

But upon both branches of the question, aside from that of trust, the complainant seems to be fully sustained by the careful exposition of the law as laid down in Haydock v. Haydock, 6 Stew. Eq. 494; S. C. 7 Stew. Eq. 570, court of errors on appeal.

See, as recent authorities on the question of undue influence:

Pemberton Will Case, 13 Stew. Eq. 520; Rusting v. Rusling, 9 Stew. Eq. 603; Lynch v. Clements, 9 C. E. Green, 434; Kise v. Heath, 6 Stew. Eq. 239; Andrews Will Case, 6 Stew. Eq. 514.

The influence acquired over a testator by kind offices unconnected with any fraud or contrivance, can never, alone, be a good ground of setting aside a will; such influence is lawful and proper.

Lowe v. Williamson, 1 Green, Ch. 82; Den, d. Turnbull, v. Gibbons, 2 Zab. 117; Re Gleespin's Will, 11 C. E. Green, 523.

A will contained alterations and erasures affecting the amount and objects of the testator's bounty, the existence of which at the time of the execution the attesting witnesses could not I will advise a decree, setting aside all of said depose to; held, there being an absence of all assignments as void, and that the said Peter C. direct evidence as to the alterations and erasMorton and John L. Morton account to the ad-ures, that the presumption of law was that ministrator de bonis non of Ann Morton, deceased, for all the estate or assets of the said Ann Morton which were assigned and transferred to them May 12, 1879; they will be entitled to credit for all just disbursements on her account; they will be charged with interest upon the various sums transferred. The complainant is entitled to costs.

PREROGATIVE COURT.

Garret CONOVER, Appt.,

v.

John L. CONOVER et al., Exrs., Respts. A father made a will, whereby he devised his property to his several children, giving a certain farm to his son Garret. After the making of the will, Garret misbehaved himself, and soon thereafter the testator made a codicil to the will, whereby "for certain reasons" he revoked the gift of the farm to Garret and instead thereof gave him an annuity of one hundred dollars. Both the will and codicil were duly executed. Thereafter testator altered the word "one" in the amount of the annuity in the codicil to "two," and made a memorandum that he wished Garret to have two hundred instead of one,

such alterations and erasures were made after the execution of the will, and the probate of the will was granted in its original form.

Cooper v. Bockett, 4 Moore, P. C. C. 419; 10 Jur. 931.

Where a testatrix told the witnesses to her will, at the time of attestation, that she had made alterations in her will but did not allow them to see what the alterations were, held, that in the absence of any means to determine what alterations were made before execution, the court could not give effect to any of them. 1 Johns. & Hem. Eng. Ch. Rep. 115.

A testatrix duly executed a draft of a will, in which at the time were several marginal notes and alterations in the handwriting of the solicitor. About four years after a codicil was executed in which no reference was made to the contents of the will. These papers remained in the custody of the testatrix until her death. It was then found that a marginal note disposing of the residue of the personalty and several bequests had been struck through with a pen, and other alterations had been made in the handwriting of the testatrix; held, that as no affirmative evidence was produced to satisfy the court that these last mentioned obliterationsand alterations were made before execution, whether the date of the execution was taken to be that of the will or the codicil, the presumption in law was that they were made subse

quently and that they could not therefore be included in the confirmation of the codicil, included in the probate.

Alterations and interlineations in a will made A testator after executing his will erased the by the testator with the intention of making it name and description of the executor and sub-operative as to after acquired lands, but which stituted those of another person. The alterations not having been duly attested the court ordered the words erased to be restored in the engrossment of the will.

nine years. On the 22d of June, 1881, about four | years before his death, he made his will, by which after directing payment of his debts and funeral expenses, he gave to his son John L. Conover his homestead farm of about 87 acres, subject to the payment of $4,000 (which he charged upon the farm) for the benefit of his estate and to be distributed as directed in the will. To each of his sons, Lafayette and Stacy, he gave $3,000; to each of his grandchildren, John L., Peter G., Jane and William Conover, be gave $700. To his daughter, Emma Hyers, he gave two sums of $3,000 and $1,000, the latter to compensate her for her care of him. And he directed that those sums should be invested for her for life, with remainder to her children or their descendants, with remainder over in case of her death without issue. To his granddaughter Caroline Dennis he gave $1,000 for life, with remainder to her children, and with remainder over in case she should die without issue. To his greatgrandson Holmes Dennis he gave $1,000 to be invested and to be paid to him with its accumulations of interest, upon his arriving at majority; and he provided that in case of the legatee's death before that time, the legacy and the interest thereon should go into his, the testator's, estate. To his son Garret, the appellant, the testator gave a farm of about forty-three acres, He provided that his desk and clock which his father left him, and some cupboards fitted to his house and belonging therein, should remain with the house. He gave the residue of his estate to his executors for their compensation; with provision that if any of them should die after the date of the will, his or their share or shares of the residue should go to the estate of the decedent or decedents, whether he or they should have done anything towards the execution of the will or the administration of his estate or not. He then gave to the children of his daughter Eleanor, and Alfred L. Conover, a certain promissory note of $2,600, with all interest thereon which he had paid for their father, and he appointed his sons John, Lafayette and Stacy, executors. The will was executed in the presence of Chilion Robbins and Acton C. Hartshorne.

On the 24th of June, 1885, about four years afterwards, and about ten months before his death, the testator made a codicil to the will by which "for certain reasons" as he declared, he revoked the gift of the farm to his son Garret, and instead of it gave him for life an annuity of $100, clear of taxes, which annuity was to begin three months after his, the testator's, death, and was to be payable quarterly; and he gave $100 to each of Garret's children. He directed that the farm given by the will to Garret should become part of the residue of the estate. The codicil was executed in the presence of Mr. Hartshorne and Charles Robbins. Afterwards, but at what particular time does not appear, the testator (he kept the will and codicil in his own possession) undertook to increase the annuity for Garret in the codicil to $200. He attempted to do this by changing the word "one" to "two," and by leaving with the codicil a paper (in his own handwriting and signed by him) as follows:

"$200. It is my wish that Garret should have two hundred dollars instead of one, as per codicil."

Both the will and codicil were executed with due formalities, and there is no reason to question the testamentary capacity of the testator at the time of making either instrument. Indeed no objection is made to the will upon any ground. Nor is any made to the execution of the codicil; and it is conceded that at the time of making thereof the testator was possessed of the requisite capacity. But the caveator objects to the latter instrument upon the ground of fraud, alleging that it was the result of undue influence on the part of the testator's sons Lafayette and Stacy, exerted by them to the prejudice of their brother Garret, the caveator.

The charge is based upon the fact that Garret was arrested on the 18th of April, 1885, and committed to the county jail of Monmouth County, upon a charge made by Lafayette that he had (according to Mrs. Hyers' testimony) made threats of personal injury to her. He remained in jail for three days and then was sent to the State Lunatic Asylum at Trenton, by virtue of regular proceedings to that end, as an insane pauper patient. He remained there one month, until the 21st of May, when he was released at the instance of Lafayette. From that time he received an allowance from the testator of $100 a year, paid in equal quarter yearly payments.

The codicil was, as before stated, made June 24, 1885, about a month after Garret left the asylum. By it, as already appears, the testator gives to him an annuity of $100 for life, and gives $100 to each of his children in lieu of the farm given to him by the will. Garret's wife and children lived at the time of his arrest in the City of New York, and he was in this State at his father's homestead where his father (whose wife was dead) lived with his daughter Mrs. Hyers and her husband, who had resided there for many years. Garret says he had been there all the spring (of 1885) when he was arrested (which was as before stated, April 18), and had been doing work upon the farm. Before his arrest he had become intoxicated, and while in that condition had in anger pushed a servant girl who was employed at the homestead against the wall, and she threatened to take proceedings to arrest him for that assault, but was dissuaded therefrom by the testator. It was said that her father had made threats that he would whip Garret for his violence to her.

On account of Garret's conduct while he was so intoxicated, Lafayette and Stacy, who happened to come to the homestead (neither of them lived there) to see their father, consulted with the latter as to what it was best to do with Garret. He told them to do whatever they thought best. They then caused his arrest as before stated, and took proceedings for his confinement in the asylum for the insane. The certificate which was made in these latter proceedings was made by Drs. Forman and Cook, two physicians of Monmouth County. It appears to have been drawn by the former. It states that they had examined into and were acquainted with the state of health and mental condition of Garret, and that he was in their opinion insane and a fit subject to be sent to the State Lunatic Asylum. There can be no doubt that the proceedings for his arrest and those taken for his confinement in the lunatic asylum were taken in good faith, and were deemed

necessary by Lafayette and Stacy, in view of his condition resulting from excessive indulgence in intoxicating drink. And when he had been restored to his reason they released him from confinement.

osition is of no value or significance whatever. The whole case shows that the testator had full testamentary capacity; that after the making of the will in 1881 the conduct of Garret was such as to induce the testator in the ex

vision which he made for him in the will (the gift of a farm, of which his improvidence might soon deprive him) to a life annuity which would be secure to him, and a legacy to his children of $100 apiece.

Mr. Hyers testifies that the day before La-ercise of his own judgment to change the profayette went to the asylum to release Garret, Lafayette and Stacy were in conversation with the testator upon the subject of the proposed release of Garret, and they asked the testator what they should do with Garret when he should have come out, and the testator said he did not want him there (at the homestead); that he would rather pay $100 than to have him there that he would rather give him $100 than to have him come back again. Lafayette says that on that occasion the testator told him to tell Garret that he would give him $100 a year, and he says he told Garret so.

The orphans' court admitted the will and codicil to probate, the latter in the condition in which it was before the alteration.

The decree should be affirmed.

No costs of the appeal will be awarded to either side against the other.

COURT OF CHANCERY.

Jeanette S. HELLER, Admrx.,

v.

William S. GROVES et al. ·

In an action to foreclose a mortgage executed by a married woman, her husband not joining therein, held, on the facts, that the mortgage is without vitality, being without consideration, and executed and delivered only to protect the property therein described from a reckless and dissipated husband.

In this connection it may be stated that the codicil itself is evidence that the testator had not been misled by being fraudulently induced to believe that Garret was insane while the contrary was the fact. The cause of the change in the provision for Garret is not stated to be his insanity, but the testator says that "for certain reasons" he makes the change. It appears, too, that the testator said on more than one occasion that Garret had not been placed in the asylum with his consent; so that there is no ground for the claim that the testator was under a false impression caused by the artful misconduct of Lafayette and Stacy towards Garret, as to the mental condition of the latter. He seems to have known all about it. The alteration in the codicil and the making of the paper before referred to, accompanying the will and codicil, are evidence that after he made the codicil his doma mind returned to the provision for Garret made thereby, and that while he intended to increase the amount of the annuity, he was not disposed to change the character of the provision.

The caveator's counsel insist that the threat said to have been made by Lafayette, that he would "fix" Garret, is evidence of animosity on the part of the former towards the latter; and they also insist that an expression to which Mrs. Hyers testifies, as having been made by Lafayette, that Garret was "fishing for the place but he, Lafayette, would be damned if he would get it," is evidence of an intention on the part of Lafayette to take advantage of Garret in the disposition of the testator's estate. Lafayette swears that he made neither of the expressions. But if he made them, it appears that the first had reference to Garret's conduct when he was intoxicated, and which resulted in his arrest, and the other was made in regard to the homestead property and not the farm given to the caveator by the will.

Mrs. Hyers testifies to another expression to which the caveator's counsel attach some importance. It is a proposition said to have been made by Lafayette to Mrs. Hyers, that she and her husband should tell the testator that they were going to leave the homestead in order thus to constrain him to do something. What it was that he was to be constrained to do does not appear, but she says that nothing was said about keeping Garret away from the homestead, and she also says she does not know what Lafayette meant by the proposition. It is manifest that the evidence on the subject of that prop

(Filed April 2, 1887.)

QILL to foreclose a mortgage made by a mar-
Bill dismissed.

The case is stated in the conclusions of the
Vice Chancellor.

Mr. John H. Backes, for complainant. Messrs. W. D. Holt and James Buchanan, for defendants.

Bird, V. C., filed the following conclusions: This bill is filed by the administratrix of Mrs. Smith, to foreclose a mortgage which, it is said, was executed and delivered to Mrs. Smith by Mary E. Groves, her daughter, to secure $1,350, so much money advanced by Mr. Smith, the husband of the one, and the father of the other. The mortgagor was a married woman at the time of the execution of the mortgage, and her husband not joining therein, an imperfection is manifest, which it is thought this court is capable of overcoming by declaring the alleged loan to be a lien on her separate estate, acting upon the supposition that the wife had the power of appointment, and did intend by her act so to appoint. The following authorities are relied upon as sustaining this view: Harrison v. Stewart, 3 C. E. Green, 451; Wilson v. Brown, 2 Beas. 277; Leaycraft v. Hedden, 3 Green, Ch. 512; Homœopathic Mut. Life Ins. Co. v. Marshall, 5 Stew. Eq. 103; Cutler v. Tuttle, 4 C. E. Green, 549; Hulme v. Tenant, 1 Bro. C. C. 16; Armstrong v. Ross, 5 C. E. Green, 116; Pentz v. Simonson, 2 Beas. 234; Pierson v. Lum, 10 C. E. Green, 390; Murray v. Barlee, 3 Myl. & K. 209; Methodist Church v. Jaques, 3 Johns. Ch. 77; N. A. Coal Co. v. Dyett, 7 Paige, 14.

Taking it for granted that the complainant | his possession, kept by him in a tin box under has the correct view of these cases (which I do lock and key, and such box deposited in his not pause to discuss), I will inquire what facts trunk. or statements have been introduced, by way of evidence, to establish whether or not any found ation is laid for this equitable doctrine to rest upon.

In 1879, Mrs. Groves being desirous of buying a lot of land, her father, Mr. Smith, advanced to her $300 for that purpose. There is no satisfactory evidence of what passed between the parties (the father and his daughter), except the payment of the money. There is no evidence that, at that time, it was regarded as a loan, or as a gift, by either. It does not appear that any note or memorandum was given or required. Mrs. Groves purchased a lot, and in order to build a house thereon, in 1870, borrowed $1,000 of Mrs. F. and gave to her a mortgage on the lot.

While this mortgage was in full force, and no part of the principal paid, Mrs. Groves, in December, 1871, executed a bond and the mortgage now in suit to her mother, Mrs. Smith, and delivered them to her. It was a year and perhaps longer after this that Mrs. Groves applied to her father to pay off the mortgage given to Mrs. F., which he did, the $1,000 and some interest then being due. He paid the money directly to Mrs. F. and had the mortgage canceled of record, taking nothing but the canceled mortgage as proof of what he did.

The attention is also arrested by the fact that it does not appear that Mrs. Smith was any party to the transaction, except to be the recipient of the bond and mortgage; or that she was in any wise consulted respecting it, or had any knowledge of it until the bond and mortgage were delivered to her.

But if this mortgage was executed without any knowledge upon the part of Mr. or Mrs. Smith, and without any pecuniary consideration, how did it come to be executed? The reason therefor is plain. Both of the witnesses called by the complainant concur in saying that their brother-in-law, Mr. Groves, became dissipated, neglected work, and abused their sister, and that she executed this mortgage to protect the property from him. They say that she was fearful that he would prevail upon her to execute a mortgage upon the premises for his convenience or accommodation.

How then, these things being so, can this mortgage have life? Or how can the amount of money therein named be declared a lien upon the land by way of appointment? Mrs. Smith gave nothing for it herself. There is nothing to show that Mr. Smith accepted it as security and made a gift thereof to Mrs. Smith. As has been already. intimated, there is no thread of evidence suggesting that there might have been an understanding between Mr. Smith and his daughter, that he having already advanced the $300, she should execute this mort

The allegation now is in the bill, that Mrs. Smith paid and advanced not only the $300, but also the principal and interest of the mortgage to secure that amount and also the $1,000, gage, being $1,050; and that, to secure the same, Mrs. Groves gave her a bond and the mortgage now in suit. This allegation, so contradictory to all the testimony, the complainant desires to remove, by amending his bill, so that the allegation shall be that the moneys were advanced by Mr. Smith, and that he ordered and directed the securities to be taken in the name of Mrs. Smith and caused them to be delivered to her, making her a gift

of them.

Proceeding, then, with this more favorable and consistent allegation, many difficulties seem to be in the way of placing the case upon the foundation prepared by the counsel for complainant. When the mortgage was executed and delivered to Mrs. Smith (if it was so delivered in December, 1871, as is alleged) not one dollar was given therefor. There is no evidence that Mr. Smith was present or had anyone present to represent him, or had the slightest knowledge of the transaction. There is no evidence that he had at any time requested the execution of such bond and mortgage, nor that he knew anything about them until a long time afterwards. It is by no means satisfactorily established that his attention was called to them when he paid off and canceled the bond and mortgage held by Mrs. F. It cannot be safely said that he had any knowledge of them until 1878, when, it is said, they were in

130

and that he would some time thereafter advance the $1,000. I am led to conclude that this mortgage is without vitality in the hands of the complainant; believing as I do, from the fullest declaration of the witnesses, that it was executed and delivered originally to protect the property therein described from a reckless and dissipated husband, and being unable to discover any proof that it was ever delivered or assigned for any other purpose, either to Mr. or Mrs. Smith.

I ought to observe that, if Mrs. Smith ever held this mortgage as a valid lien on the lot in question or as evidence of a just claim against her daughter, by the consent of Mr. Smith, then, it appearing that Mr. Smith had the undisputed possession of it before the death of Mrs. Smith, he may have come by it in a perfectly legitimate way, and for a good consideration; and all will agree that, he having the possession, the presumption (if there is any presumption in favor of any party) is that he was the lawful owner and holder. And again; Mr. Smith surviving his wife, and still having the possession thereof for several years, it would not be straining the rule (that the husband takes as next of kin) to hold that he supposed he was so entitled, having the possession without the formalities of administration.

I think the bill ought to be dismissed, with costs, and will so advise.