BOHMRICH v. KNOOP.

(Court of Errors and Appeals of New Jersey. Nov. Term, 1892.)

Appeal from court of chancery. Bill by Ludwig G. Knoop against Louis G. Bohmrich. From a decree advised by Vice Chancellor Van Fleet, (49 N. J. Eq. 82, 23 Atl. Rep. 118,) defendant appeals. Affirmed.

John W. Bissell and Gilbert Collins, for appellant. James A. Gordon, for respondent.

PER CURIAM. Decree unanimously affirmed, for the reasons given in the court of chancery.

TATEM v. SPEAKMAN. (Court of Errors and Appeals of New Jersey. Nov. Term, 1892.)

Bill by Thomas C. Speakman against John C. Tatem. From a decree advised by Vice Chancellor Pitney, (48 N. J. Eq. 137, 21 Atl. Rep. 466,) defendant appeals. Affirmed.

Grey & Grey, for appellant. David J. Pancoast, for respondent.

PER CURIAM. Decree unanimously affirmed, for the reasons given in the court of chancery..

FLUCK et al. v. REA et al. (Prerogative Court of New Jersey. Oct. 17, 1893.)

WILLS-TESTAMENTARY CAPACITY-INTOXICATION

EVIDENCE.

A man may habitually indulge in intoxicants, and yet possess testamentary ca pacity, if at the very time of the execution of the will he was able to, and did, clearly comprehend the nature and effect of the business in which he was engaged.

(Syllabus by the Court.)

Appeal from orphans' court, Hunterdon county; Chamberlain, Cullen, and Martenis, Judges.

To the petition of Henry A. Fluck and Jacob A. Wert, executors, for probate of the will of George A. Rea, deceased, Runkle Rea and others instituted a contest. From the decree denying the petition and allowing counsel fees, petitioners appeal. Reversed in part.

Richard F. Kuhl, Alvah A. Clark, John A. Bullock, and W. Holt Apgar, for appellants. J. Newton Voorhees, George H. Large, and H. Brudette Herr, for respondents.

MCGILL, Ordinary. The appeal questions the propriety of a decree of the orphans' court of Hunterdon county, made on the 13th of January, 1893, refusing probate of a paper purporting to be the last will and tes tament of George A. Rea, deceased, and allowing sundry counsel fees. The general ground of contest is that George A. Rea lacked testamentary capacity. Mr. Rea died on the 6th of June, 1892, at Flemington, in this state, aged 72 years. He was a childless widower. His next of kin are the children of three deceased sisters and two de ceased brothers. During his life, he kept a boot and shoe store in Flemington, and was extensively engaged in farming, and also in buying and selling hides of animals. He was the owner of several farms, which contain, in the aggregate, more than 2,000 acres of land, and also of a large brick building in the business part of Flemington, and also of personal property estimated to be worth between thirty-five and forty thousand dollars. His entire estate is worth about $160,000. In May, 1891, he became intemperate in the use of intoxicating liquors, so that during the last six months of his life, for

a large portion of the time, he was more or less intoxicated. The will in question was executed on the 12th of December, 1891, about six months before his death. The insistment now is that at that time Mr. Rea was so intoxicated that he did not comprehend the nature and effect of the business in which he was engaged.

The rule which controls this case is stated by Chief Justice Denio in Peck v. Cary, 27 N. Y. 9, 23, in this language: "It is not the law that a dissipated man cannot make a contract or execute a will, nor that one who is in the habit of excessive indulgence in strong drink must be wholly free from its influence when performing such acts. If fixed mental disease has supervened upon intemperate habits, the man is incompetent, and irresponsible for his acts. If he is so excited by present intoxication as not to be master of himself, his legal acts are void, though he may be responsible for his crimes." I adopted this statement of the law in Bannister v. Jackson, 45 N. J. Eq. 702, 17 Atl. Rep. 692, which case was affirmed upon appeal. 46 N. J. Eq. 593, 21 Atl. Rep. 753.

He ap

I do not find any evidence in the case to warrant a claim that a fixed mental disease had fastened upon Mr. Rea. pears to have been a man of unusual business capacity, and, up to the very time of his death, when sober, to have possessed ample capacity to efficiently manage all his business affairs. The question, then, is narrowed down to the inquiry whether, in fact, at the very time of the execution of the disputed paper, Mr. Rea was so intoxicated that he did not comprehend the nature and effect of the transaction in which he engaged. As no fixed mental disease was proved to have existed prior to the making of the will, the burden was upon the contestants to clearly and satisfactorily show that when the instrument was executed Mr. Rea was so intoxicated that he did not intelligently appreciate that which he was doing. Now the proofs to which the contestants resort are made by the testimony of three employes of Mr. Rea, and a grandnephew, who is the son of one of the caveatrices, and Mr. John R. Foster, who mentions a single instance of intoxication. Two of the employes are so ignorant that they can neither read nor write. The first of them is William T. Carkhuff. I find this witness to be so reckless and extravagant in many of his expressions, that, in view of the testimony of other witnesses, to whom I hereafter refer, I can place but little reliance in his testimony. For instance, he swears at the outstart, speaking of Mr. Rea: "I do not think he drew a sober breath from May, 1891, to his death; and certainly not for the last six months before his death." Yet, later, he speaks of instructions that he received from Mr. Rea, which indicate that Mr. Rea was unquestionably in full possession of his faculties at times. For instance,

"He would say, He would hand 'Go get that bot

quoting from the witness: "That bottle sits up there.' me a silver dollar, and say, tle filled uptown.' He would tell me to bring it to the back door, and set it up there on the shelf, in case anybody was in. If no one was in, he would come to the back part of the store, and take the bottle himself, and take care of it." It is very apparent that at the giving of such instructions Mr. Rea was in possession of his senses, and acute enough to conceal his secret habit. His condition at such times is at variance with the impression that Mr. Carkhuff evidently sought to convey by his statement that Mr. Rea never drew a sober breath. Of the same character is the testimony of Mrs. Meyers, who was Mr. Rea's housekeeper. She testifies: "It was pretty much the same all the time" after October 1, 1891. "I never could say that I saw him sober afterwards." Yet Mrs. Meyers, when speaking of the provision of food for the household, said of Mr. Rea: "Sometimes he would get it, and sometimes he would be so drunk that he would forget it;" indicating that at times Mr. Rea was sober, or, at least, sober enough to intelligently transact business. Another instance of the extravagance of the statements of Mrs. Meyers is to be found in the description of a lamp chimney, which broke while Mr. Rea was intoxicated. in his store. To emphasize the breaking of the chimney, and impress, if possible, the danger of the situation created thereby, she swore that it broke into "a thousand pieces." Common experience teaches that it would be a most unusual-indeed, almost miraculous-thing for a heated lamp chimney to break into 1,000 pieces. As we read the testimony, we involuntarily conclude that the witness did not mean her statement to be taken literally, and yet the expression betrays a lack of exactness in truth, and a zeal in behalf of the contestants' case, which must affect the credit we accord the witness. The third witness had less opportunity to observe Mr. Rea, and is more guarded in his statements. He sums his testimony up with the conclusion that Mr. Rea was not drunk all the time, "but had liquor in him all the time." John R. Foster testifies that he had a business interview with Mr. Rea on the 10th of December, 1891, two days before the will was executed,-that is, Thursday; the will being executed on Saturday,-and that Mr. Rea was drunk then. There is no question as to the truth of this testimony. The witnesses upon the part of the proponents also testify to Mr. Rea's intoxication upon that day. The remaining witness for the contestants is David S. Servis, the son of one of the contestants. Servis speaks of a business transaction he had with Mr. Rea on the 24th of January, 1892. He was apparently mistaken as to this date; the date was January 19th, but it is immaterial. Servis says that at that time Mr. Rea said to him:

"I never made a will, and never will make a will. The law is good enough to settle up my business after I am done with it." The object of the introduction of this testimony is manifestly to show that, a little over a month after the will was made, Mr. Rea did not know anything about it; leaving it to inference that he was intoxicated when the will was signed, and oblivious of the transaction. This is all the testimony against the will.

Now, upon the part of the proponents, the two subscribing witnesses swear that when the will was executed Mr. Rea was sober. One of them was a druggist, who occupied a store adjoining the store of Mr. Rea, and who was a tenant of Mr. Rea, accustomed to his habits, and having knowledge of his character. The other was the teller of the bank in which Mr. Rea kept his account, who also was familiar with Mr. Rea's character and habits. These gentlemen were together present, for about five minutes, at the execution of the instrument. They do not remember that Mr. Rea said anything more than that he acknowledged the instrument to be his will. They were satisfied, however, that he was sober. Mr. Henry A. Fluck and Jacob R. Wert, who are the executors named in the will, were also present at its execution. Prior to the execution they each had a long conversation with Mr. Rea concerning the will, and they both most positively swear that he was entirely sober, and in full possession of his faculties, when he signed it. As against these witnesses, at this crucial point, is the testimony of the witness Carkhuff, who says that he went into the store a few minutes before the execution of the will, and asked Mr. Rea for some money, and that then Rea was sitting at the table, with a paper before him, which the witness says he was "pretending" to read, but that the witness thought that he was intoxicated, for his spectacles were half off; that, in reply to his (Carkhuff's) request for money, Mr Rea answered, "Wait awhile," and went on with his reading. The testimony of Mr. Wert is that, at about the time that Carkhuff came in, he had given the will to Mr. Rea to read, and had gone to bring Mr. Fluck, who is a lawyer, to go over the will with Mr. Rea, and explain its legal effect. I think, according truth to the statement of fact made by both Carkhuff and Wert at this point, the plain reconciliation of their disagreement is that Mr. Rea was intently reading the will while Mr. Wert was calling Mr. Fluck, and that, while he was so intent, his servant, Carkhuff, came in, and asked for money, and that Mr. Rea, absorbed in his work, without raising his eyes, said, "Wait awhile." The illiterate servant, of course, could not appreciate such absorption in a paper, and attributed it to intoxication. It follows that the subscribing witnesses were right in saying that the testator was sober, and that Carkhuff ig

norantly erred in his inference that the testator was intoxicated.

Now it appears by the testimony of Mr. Wert that, on the Monday preceding the execution of the will, Mr. Rea told him that he would like to make a will, and asked him if he had ever drawn such a document, and that Mr. Wert replied in the affirmative, and that then Mr. Rea told him that he understood that if he (Rea) died without distributing his estate by will, the children of his brothers and sisters, the brothers and sisters being all dead, would take equal shares in the estate per capita, instead of per stirpes, and that he desired to have a will made so that his property would be divided into five equal shares, and one of those shares would go to the living children of each dead brother or sister; also, he desired that the executors should have power to sell his property in such a way that it would not be subjected to the sacrifice which usually attends a forced sale. Mr. Wert says that he drafted a will, and went with it to Mr. Rea on Wednesday morning, and told Mr. Rea that he would like to have the names of his nephews and nieces, and that Rea then said that Wert did not need the names of his nephews and nieces; that Wert misunderstood him; that his property was to go per stirpes, and not per capita. Mr. Wert then left him, and that night consulted with Mr. Fluck, who drafted provisions for a will to carry out the testator's intention. On Thursday Wert saw Mr. Rea again, but found that then he was intoxicated. That day was the 10th of January, the day on which Mr. Foster says the testator was intoxicated. On Friday Wert submitted the matter to the testator, and found that the will was acceptable, and on Saturday morn ing brought the paper again to him, and then went for Mr. Fluck. It was while he was away on this errand that Carkhuff made his demand upon Mr. Rea for money. Fluck says that he came to Mr. Rea's store, and carefully read over and explained the will to him, and, upon Mr. Rea being satisfied with it, at Rea's request, called the subscribing witnesses, and the will was executed. Thus it appears that at the very time of the execution of the will four men saw the testator, who all unite in saying that he was free from intoxication, and in full possession of his faculties. More than this, the signature to the will itself shows no evidence that the writer was nervous or intoxicated. The signature to it is not the signature of a trembling inebriate, but the bold, rapid writing of a man in possession of power. I find among the exhibits a bank deposit slip, indicating that a deposit was made in the bank in which Mr. Rea kept his account. to his credit, on the very day on which the will was executed. That slip contains Mr. Rea's wellwritten signature and two items of figures made by Rea, correctly added together. More than this, Calvin Corle, president of the

Somerset County Bank, states that in February, 1892, he had occasion to go to Flemington to prove a will, and that, after making the proof, he called to see Mr. Rea, and told him what his errand had been, and that Mr. Rea then said to him that he had found out that if he (Rea) had not made a will, his nephews and nieces would all share in his estate alike. Mr. John A. Bullock, a reputable member of the bar, practicing in Flemington, testifies that he also, one day in February, 1892, met Mr. Rea, and that Mr. Rea told him that he had made a will, and that possibly some time he would want to make another. Thus we have the testimony of two credible and disinterested witnesses that two months after the will was made Mr. Rea remembered both it and its provisions. Comparing the testimony of these witnesses with the testimony given by David S. Servis, I am at a loss to reconcile them, unless I believe that the testator had some purpose in making Mr. Servis believe that he had not made a will. I have not referred to the testimony of a half dozen or more witnesses, all of whom are respected in the community in which they dwell, who speak of having, time and time again, within the last year of Mr. Rea's life, seen and conversed with him when he appeared to them to be entirely free from intoxication.

The

sum of all the instances referred to will amount to nearly 50, and show that at least upon that number of occasions, during the last year of his life, Mr. Rea was sober. I cannot doubt this testimony; and when I consider it, and, at the same time, recall the extravagance of much of the testimony offered by the contestants, I am satisfied, beyond all doubt, that Mr. Rea was much of his time free from intoxication.

The result of my consideration of this case is that the will should have been admitted to probate, and that in denying it probate the decree of the orphans' court is erroneous, and must be reversed.

The decree in question also makes sundry allowances to counsel. The entire decree is appealed from, and thereby the propriety of these allowances comes in question. No objection, however, was urged in this behalf upon the argument before me. 1 am informed by counsel that the allowances were calculated at $20 for each day's actual attendance upon the orphans' court. In absence of proof of the contrary, I perceive no ground upon which I should interfere with the exercise of the orphans' court's discretion in this respect. I will therefore affirm this part of the decree. I will admit the will to probate.

CRAIG SOMERS. (Supreme Court of New Jersey. June 8, 1893.)

JUDGE-AUTHORITY-PRESUMPTIONS.

1. The judgment certified was rendered in the district court of the city of Trenton. The

case was tried before William S. Yard, one of the judges of the court of common pleas of the county of Mercer, who is authorized to hold the district court when he is assigned by a justice of the supreme court to do so. No objection was made on the trial below to the right of Judge Yard to preside, and there is nothing in the record before this court to show whether he was duly empowered to act. Under our statute, the common pleas judge is designated to hold the district court for the time being, and not to try any particular cause. His appointment, therefore, is no part of the record in this case, and the presumption will be, in the absence of evidence to the contrary, that he was duly qualified to act.

2. The relator had a right to challenge in the court below, and, upon such challenge being interposed, it should have been sustained, unless the judge could produce his authority to preside in the court.

(Syllabus by the Court.)

Certiorari to Trenton city district court; Beasley, Judge.

Action for breach of contract by Nella Somers against Thomas Craig. Plaintiff had judgment, and defendant brings certiorari. Affirmed.

Argued at February term, 1893, before VAN SYCKEL and GARRISON, JJ.

John Caminade, for prosecutor. Carroll Robbins and Wm. M. Jamieson, for defendant.

VAN SYCKEL, J. This action was brought in the district court of the city of Trenton to recover damages for breach of contract for the sale or exchange of lands. Somers, the plaintiff below, recovered a judgment, which is certified into this court for review. The reason mainly relied upon for reversal is that, Chauncey H. Beasley being the judge of said district court, said court was not held by him, but was held and said cause was tried by William S. Yard, one of the judges of the court of common pleas of the county of Mercer; and that said Yard was not designated to hold said court by writing signed by said Chauncey H. Beasley, and approved by the judge holding the circuit court in and for the county of Mercer; and that, therefore, the trial court had no jurisdiction. The district court of the city of Trenton is a statutory court, deriving its authority from the act constituting district courts in certain cities of this state. Section 175 of said act, after the providing for the making of rules for the said court by the judge thereof, to be approved by the justice of the supreme court, who shall hold the circuit court in and for the county wherein said court may be established, provides as follows, to wit: "And in case of the sickness or unavoidable absence of the judge of any district court, the same may be held by one of the judges of the court of common pleas, to be designated, by the judge so sick or absent, and approved by the aforesaid justice of the supreme court." No objection was taken in the trial court to the right of Judge Yard to hold the said district court, and there is nothing in the record produced before this court to

show whether or not he was duly qualified and empowered to act as substitute judge. In Russell v. Work, 35 N. J. Law, 316, it was held that the court for the trial of small causes is not an inferior court or a special statutory tribunal, in the sense that its judgments can be called in question in a collateral proceeding, or that every circumstance necessary to constitute its jurisdiction must be made affirmatively to appear. The same rule must apply to district courts. In the quarter sessions the maxim applies that all things will be presumed to be rightly done, and that led this court in the recent case of State v. Engeman, 23 Atl. Rep. 676, to hold that, when the law judge of the sessions was temporarily away, he would be presumed to be away by reason of inability to attend, and to be absent, in the statutory sense. In Harper v. Jacobs, 51 Mo. 299, the substituted judge failed to take the oath necessary to qualify him to act, but, as that point was not stated as an objection before him, the court above refused to entertain it. The Missouri statute provides for a number of instances in which a judge may be substituted. In State v. Hosmer, 85 Mo. 553, the record failed to show the fact which disqualified the judge of the trial court, and, the case having been tried before a substituted judge, the Missouri court held that the record need not recite the disabling facts. In Estate of Newman, 75 Cal. 213, 16 Pac. Rep. 887, it was declared that it must be presumed that a judge of a superior court of a particular county who holds court in another county is acting upon the request of the governor or of the judge of the court of the latter county, in the absence of evidence to the contrary. The cases relied upon by the relator do not support his case. In Herbster v. State, 80 Ind. 484, the objection was taken in the trial court, and the failure to make a legal substitution was shown. In the supreme court the judge who pronounced the opinion expressly stated that he did not decide under what circumstances a proper appointment and qualification would be presumed, as it appeared affirmatively that the substituted judge was not legally appointed. In Muscatine v. Steck, 7 Iowa, 505, the objection that the substituted judge was without authority was taken on the trial before him, and overruled. University v. Stewart's Ex'rs, 12 Iowa, 442, was also correctly decided, the Code of Iowa providing that the record must show why there was a substituted judge. The statute in Wisconsin provides that, in the absence, sickness, or other inability of the municipal court, any justice of the peace of the county shall have jurisdiction to try the same class of cases. In Klaise v. State, 27 Wis. 462, the municipal judge wrote on the back of the complaint made to him in the cause, "I hereby decline to act in this case," assigning no reason for such refusal. Thereupon the same complaint was presented to a justice of the peace who tried

the case.

The case was taken to the supreme court, and there the objection to jurisdiction was first taken. The indorsement of the municipal judge on the complaint was before the supreme court, and that court held that he had acted arbitrarily, and that the justice had no jurisdiction. The case cited from 64 Pa. St. 33, was an application by two judges to assign other judges to act for them on account of their inability. The only question was whether, under the statutes, there was power to direct substitution. The supreme court decided that question in the affirmative, and said that a certificate ought to be filed as evidence of the authority of the substituted judges to act.

Under our statute, the common pleas judge is designated to hold the district court for the time being, and not to try any specified case. His appointment, therefore, is no part of the record of any particular cause which may be tried before him, and from the fact that it does not appear in the record of the case certified into this court the inference cannot be drawn that he was not duly au thorized in accordance with the statute. The relator had a right to challenge in the court below the authority of Judge Yard to try the cause, and, upon such challenge being interposed, it should have been sustained, unless the judge could produce authority to preside in the court. Upon the record before us, there is nothing to show a want of authority, and therefore it must be presumed that the court was duly constituted.

The objection to the statement of demand is not well taken. It was not necessary to aver that the contract was in writing. The plaintiff was entitled to recover if he proved a valid contract. The judgment below should be affirmed, with costs.

PERRINE v. FIRST NAT. BANK OF JAMESBURG. (Supreme Court of New Jersey. June 8, 1893.) CHATTEL MORTGAGE-REPLEVIN BY MORTGAGEEATTACKING BONA FIDES OF PRIOR MORTGAGE.

A second mortgagee of chattels, in whose mortgage there is a recognition of a previous existing mortgage upon the same chattels, cannot attack the former mortgage by setting up that it was made in fraud of the mortgagor's creditors.

(Syllabus by the Court.)

Error to court of common pleas, Middlesex county; Rice, Freeman, and O'Gorman, Judges.

Action in replevin by the First National Bank of Jamesburg against William D. Perrine. Plaintiff had judgment, and defendant brings error. Reversed.

The other facts fully appear in the following statement by REED, J.:

An action of replevin was brought by the First National Bank against William D. Perrine for taking certain chattels. Upon the trial it appeared that one Samuel E.