Opinion
03-31-1894
GREENWOOD v. HENRY et al.
R. V. Lindabury and W. H. K. Davey, for complainant. Robert E. Chetwood and F. M. Voorhees, for defendants.
(Syllabus by the Court.)
Bill by William M. Greenwood against Adelaide H. Henry and another for specific performance. Decree for complainant.
R. V. Lindabury and W. H. K. Davey, for complainant.
Robert E. Chetwood and F. M. Voorhees, for defendants.
PITNEY, V. C. This is a bill for specific performance of a written contract, in these words: "Lorraine, March 9, 1892. Know all men by these presents that William M. Greenwood agrees to work faithfully for Mrs. Eliza R. Thompson as a general manager of all her business, to do any kind of work that he may be called upon to do, for the period of her lifetime. In consideration of the services to be performed, the said Eliza R. Thompson agrees to that William M. Greenwood is her sole heir to all my real estate and personal property. We have signed as above dated. Eliza R. Thompson. W. M. Greenwood." Mrs. Eliza R. Thompson, one of the parties to the contract, died on the 19th of July, 1892, intestate; leaving the defendant, Mrs. Adelaide H. Henry, her only heir at law, and sole next of kin. Administration of her estate was granted to the defendant Ogden, and on the 28th of September, 1892, this bill was filed against Mrs. Henry, as heir at law, and Mr. Ogden, as administrator, setting out the contract; alleging its performance on the part of the complainant, and that the deceased died seised of real estate in both New Jersey and New York,—that in New Jersey being described by metes and bounds,—and also possessed of personal property of considerable value, which had come to the possession of the defendant Ogden, as administrator; praying specific performance of the contract, and that the complainant may be adjudged and decreed to be entitled to all the property, real and personal, of which Mrs. Thompson died seised and possessed, and that Mrs. Henry may be decreed to convey to the complainant all the real estate of which Mrs. Thompson died seised, and that the defendant Ogden be required to pay and deliver to the complainant the personal estate of Eliza R. Thompson which may remain in his hands after settlement of his accounts. Both the defendants answered, denying the execution of the contract by Mrs. Thompson, and also its performance by the complainant At the hearing the defense mainly relied upon was that the signature of Mrs. Thompson to the contract in question was not genuine, but was forged by the complainant, or by his procurementThe defendant Mrs. Henry was offered as a witness on behalf of the defendants, and testified to conversations and transactions with the deceased, and between deceased and the complainant. Subsequently, the complainant was called in his own behalf and was permitted, subject to timely objections made by the defendants, to give evidence upon the whole case, including conversations and transactions with the deceased, the question of the admissibility of the evidence being reserved for the final hearing.
I conceive it to be convenient to determine this question of competency at the start. The objection raised by the defendants was, of course, based upon the fact that the administrator is sued in a representative capacity, and was not sworn as a witness. On the other hand, the claim for the competency of the evidence is based upon the ground that Mrs. Henry, the heir at law and next of kin, is also sued in a representative capacity, viz. as heir at law, and was offered and sworn as a witness in her own behalf, and testified as above stated; and hence it is claimed, under the canon laid down in McCartin v. McCartin, 45 N.J.Eq. 265, 17 Atl. 809, the complainant, as the opposite party, is rendered competent to give testimony on all subjects. If this suit had been confined to a recovery of the realty, and Mrs. Henry was, as well she might be, the only party defendant, the complainant's position would have been above dispute, for Mrs. Henry would have found herself in this dilemma: if she was not sued in a representative capacity, then complainant was clearly competent. If she was sued in a representative capacity, she had rendered him competent by offering herself as a witness, and testifying in her own behalf, within the interdicted range. The real merits of the question are not changed by the fact that complainant, by his suit, claims the personal estate, as well as the realty, and makes the personal representative a party, since Mrs. Henry is sole next of kin, as well as heir at law, and is the only person in the least degree interested adversely to the complainant in any part of the estate. The amount of the indebtedness of deceased was but trifling, as compared with the amount of the personal estate; so that Mrs. Henry, as sole next of kin, was clearly master of the suit, and entirely responsible for being called as a witness. Nevertheless, the bar of the statute against the evidence in question remains, unless Mrs. Henry was sued in representative capacity, and its competency must be determined accordingly. The precise question arose in Colfax v. Colfax, 32 N.J.Eq. 206—an exactly similar case—and it was there decided by Chancellor Runyon that the heir was sued in a representative capacity, and that the complainant, who stood precisely as does the complainant here, was not a competent witness, unless made so by the action of the defendant The same rule was laid down by the supreme court in the very recent case of Joss v. Mohn (N.J.Sup., June 1, 1893) 26 Atl. 987. That was an action brought upon contract for money loaned, against the devisee of the original borrower, and it was held that the defendant was sued in a representative capacity, and that the plaintiff was not competent That decision renders it unnecessary for me to consider whether or not the intervening cases of Hodge v. Coriell, 44 N.J.Law, 456, on error 46 N.J.Law, 354; Palmateer v. Tilton, 40 N.J.Eq. 555, 5 Atl. 105; and Crimmins v. Crimmins, 43 N.J.Eq. 86, 10 Atl. 800,—can be reconciled with the earlier case of Colfax v. Colfax. The defendant Mrs. Henry being thus sued in a representative capacity, and having been offered and sworn as a witness in her own behalf, and having testified to conversations with and transactions by her ancestor, she thereby, under the canon laid down in McCartin v. McCartin. rendered the complainant competent to give testimony on all subjects. Notwithstanding my opinion as to the competency of that part of the evidence of the complainant which was objected to, I shall consider the case, at first, as if the evidence had been excluded; so that, in case it should be held, upon appeal, that I am wrong in my conclusion as to its competency, the court may have the benefit of my views upon the effect of the evidence, other than that which was objected to.
Mrs. Thompson, the decedent, was born in Cincinnati, Ohio, according to Mrs. Henry, in 1827, and was, on that assumption, about 65 years of age at the time of her death. Her counsel, Mr. Chetwood, stated her age at 62. Her husband was also a native of Cincinnati, or its vicinity; and they spent their youth, and were married, and lived there until some time previous to the Civil War, when they removed to the east, and the husband engaged in business in New York City. They at first lived in Brooklyn, but removed to New Jersey some 25 years ago, and had lived most of that period in the house where they both died. It was situate at a place called Dark Lane, a little over two miles from Elizabeth, and near Roselle, on the Central Railroad. They never had any children. Mrs. Henry was the half-sister of Mrs. Thompson, and some six or seven years, at least, older than she, having been born in 1821. Mrs. Thompson's husband died in 1888. The complainant was also born and bred, and always lived, in Cincinnati, and was a cousin of Mr. Thompson; and, according to his evidence, there was great intimacy between the families, Mr. Thompson and Mrs. Thompson being frequent visitors at complainant's father's house during complainant's childhood. At all times, as complainant swears, both Mr. Thompson and Mrs.
Thompson manifested a great liking for him, and he frequently expressed a desire to adopt him as his own child. After Mr. Thompson moved to the east, he and his wife made frequent visits to Cincinnati, where all their relatives resided, and on those occasions he repeated his expressions of desire to adopt the complainant; and, after complainant had arrived at manhood, he several times visited Mr. Thompson at the east, the last visit being made while he was on his deathbed. Mrs. Thompson was a woman of rather vigorous intellect, not very thoroughly developed by education, and with some capacity for business,—sufficient to enable her to look out tolerably well for her own interests,—but not enough to enable her to feel that she could do without the advice of a competent business man. She had a small farm surrounding the house in which she lived, at Dark Lane, and a year or two before her death a Mr. A. D. Thompson, who was no relative of her husband, conceived the idea of developing the neighborhood into a suburban town, and establishing a railway station there, and purchased property for that purpose,—among others, the greater part of Mrs. Thompson's farm. She also bought of him some new houses, with lots, in the neighborhood. This increased her care of looking after her property, and she continually sought the advice and assistance of others. A Mr. Silas D. Drake, a real-estate agent of Elizabeth, who was associated with Mr. Thompson in the development of the new town at Dark Lane, now called Lorraine, was consulted by her frequently,—almost daily. She occupied so much of his time, and with so little compensation, that the affair became irksome to him, and he suggested that she should get somebody else to act as her adviser. In the fall of 1891 she told him that the only relative she had was a cousin, naming the complainant, who lived in Cincinnati, and that she had written to him to come east, and live with her, and look after her affairs, and that he was coming as soon as he could arrange his business. She mentioned this to Mr. Drake on more than one occasion. Another acquaintance whom she consulted about her affairs was a Mr. Samuel Lewis, a carpenter and builder in Elizabeth; and she also stated to him and to his mother, who visited her socially, that she had written to Mr. Greenwood, the complainant, and expected him to come on and live with her. Mrs. Thompson was addicted to drink,—not daily, but by "spells,"—and carried it so far as to be subject to attacks of delirium tremens. There is no proof that she ever had such an attack before her husband's death; but Dr. Pierson, a respectable practitioner of the neighborhood, swears that she was seriously intoxicated on the occasion of her husband's death, and that he had attended her, between that time and her own death, some three or four times, for delirium tremens, and had also, on a fewother, occasions, given medicine to a serving man, for her, for the same symptoms. This weakness of Mrs. Thompson was known to a few, only, of her neighbors. Neither Mr. Drake nor his son, who saw her frequently, nor Mr. Lewis, ever saw her when they thought she was intoxicated. It would seem that there was nothing in her appearance to indicate that she was the victim of this habit, and it did not affect her mind or general business capacity. Her family, after her husband's death, consisted of herself and a mulatto named John Smith, and, for the greater part of the time, her half-sister, Mrs. Henry. When Mrs. Henry was not with her, she may, at times, have kept a female servant. When Mrs. Henry was with her, she acted as such; and Mrs. Thompson did not introduce her to her friends as her sister, but stated, to some of them, at least, that she was a mere servant in the house. The evidence tends to show that she had no fondness for her sister. She was addicted to gusts of passion, and, on the occasion of one of them, drove her sister out of the house, and kept her away for a considerable time; and it is a fair inference from the evidence, both of Mrs. Henry and of Mr. Greenwood, that she felt obliged to support her. either by keeping her at her house, or paying her board when she was at Cincinnati. The mulatto, John, occupied an equivocal position in the house. He had a room, and took his meals, there; paid no board, but did the night and morning work about the house and barn, took care of the horse and cow, and carried in fuel, and so forth, as an offset to his board. In the daytime he worked for the neighbors, and received his pay for it; and, according to his story, when he worked for Mr. and Mrs. Thompson at other work than the chore work about the house and stable, he received payment in cash for it Mrs. Thompson expressed a strong desire to be rid of John from her house, but was afraid to turn him away, lest he might set fire to her buildings. He had brought forward a largo claim for services in years gone by, the payment of which he demanded as a condition of his leaving. He, too, was addicted to drink. In the latter part of January, 1892, during the absence for several weeks of Mrs. Henry, Mrs. Thompson—probably, while intoxicated—happened to fall and break a rib. Dr. Pierson was called in, and found her intoxicated, and with this rib broken. That was on the 28th or 29th of January. He got her to bed, and bandaged her person, and sobered her up. On January 31, 1892, while in bed with the broken rib, but after, as I understand the doctor's evidence, she had substantially recovered from her intoxication, the complainant and his younger brother, Charles W. Greenwood, made their appearance. Mrs. Henry had been sent for, and had returned to the house. Charles says he came on with his brother, understanding that his brother had been invitedto come by Mrs. Thompson to stay and live with her, and take charge of her affairs, and also says that Mrs. Thompson, on their arrival, so expressed herself to him. He further says that Mrs. T. Inquired why he had not come sooner, and expressed satisfaction at his arrival, and, in the course of the conversation, stated that she and her husband had desired to adopt William as their child, when a baby; and that she offered to pay the traveling expenses of both for the journey, and, upon its being declined, remarked that it made no difference, as Will would get it all when she was gone. Charles stayed a day or two, and left his brother there. From that time on until Mrs. Thompson's death, on the 19th of July, the complainant lived with her, and devoted his whole time and attention to the care of her business and grounds, and horse and cow, and so forth; attended to the tearing down of an old barn, and the building of a new one; took care of her garden; advised her about her affaire; and in fact did everything that could be done by any man for her. So that the evidence satisfactorily establishes the performance by Mr. Greenwood of his part of the contract set out in the bill, after it was made, if it ever were made.
Mr. Robert E. Chetwood, of Elizabeth, had been Mrs. Thompson's counsel for years, had done all her legal work, and had the greater part of her securities and papers in his possession. A few weeks or months before she died, her attention had been called to the value of a house and lot upon which she had taken a mortgage to secure a loan of $1,500, which business had been transacted through Mr. Chetwood; and her information was that the security was very scanty for that loan, and she learned that he had received a commission of $50 from the borrower for his services in the affair. This displeased her, and caused her to distrust Mr. Chetwood, and she went to Mr. Davey, and consulted with him about taking her papers out of the hands of Mr. Chetwood; and while the affair was in that situation she died, suddenly,—so suddenly that there was no time for the attendance of a physician. Mr. Chetwood, who was supposed by the mulatto, John, to be still her counsel, was notified, and came to the house about 2 o'clock,—a few hours after she died. Before entering the house, he met Mr. Greenwood, and had a conversation with him, in which Mr. Greenwood told Mr. Chetwood that there was a will; and, in reply to a question as to its contents, Mr. Greenwood said that its contents would appear when it was produced, and that it would be produced. This is Mr. Chetwood's account. Mr. Chetwood, with Mrs. Henry, proceeded to search the house that afternoon for a will, and found none; and he made a further search with Mr. Davey two weeks later, and found none. The very day of, or the day after, Mrs. Thompson's death, Mr. Greenwood called, on an errand, upon the undertaker who had charge of the remains, and was to conduct the funeral, and showed him a paper in the nature of a will, purporting to be signed by Mrs. Thompson, and the signature to which was looked at and recognized by the undertaker as the signature of Mrs. Thompson. It was unwitnessed, and Mr. Greenwood asked the undertaker's advice about it and he advised him to go to a lawyer with it The same or the following day, and before the funeral, Mr. Greenwood called upon Mr. Davey, his present solicitor. He knew that Mr. Davey had been consulted by Mrs. Thompson with regard to her affairs, as hereinbefore stated, and he was present at her interviews with Mr. Davey. He told Mr. Davey that he had papers to show that he was entitled to Mrs. Thompson's estate, and produced a testamentary writing, which I am satisfied is the same he had previously shown to the undertaker, and stated at the time he produced it that he had another paper at home, which he had not brought. Mr. Davey examined it, told him that, as it was not witnessed, it was of no value, and asked him to bring his other paper. This he did in a day or two. I infer it was the day of, or the day after, the funeral; and he then produced and showed to Mr. Davey the contract above set forth, upon which this suit is founded. Mr. Davey has had possession of it ever since, until it was offered in evidence. It has a creased and worn appearance, and Mr. Davey testified that it had the same appearance when it was handed to him, and did not appear to have been recently written. His evidence in this respect I conceive to be entirely reliable, and it is supported by a photograph which he himself took of the paper shortly after it was handed to him. The contract has already been set out. The testamentary writing is in these words:
"Lorraine March 21 1892
"To all whom it may consen I Eliza R. Thompson do here state as hereinto affixed and being in sound mind and worthy of good credit, I sincerely declare to be true that my horse Jenny and my Cow Dasey for then-subsistence, for as long as they may live $100 00-100 each and every year as long as Jenny the horse and Cow Dasey may live, and as to Fox the Dog and Rover the Dog, say $50. 00-100 a year or as long as they may live and as to my two Cats Blackey and Stripey I promise for thei subsistence for one year or as long as they live $25 00-100 together for the two Cats as mentioned above and as to Mrs. A. H. Henry formaly of Cincinnati Hamilton Co ohio, I do bequeath for her subsistance for one year $500 00-100 Dollars or as long as she may live and in case Mrs. A H. Henry should dye her allowance of $500 00-100 Dollars will go to my young cousin Charles W. Greenwoodof Cincinnati Hamilton Co Ohio, now at Pittsburgh Pa and all that is left I do hereby certify that on the day of the date hereof, I personally declare that all my real estate Bonds or any thing I have or may have an intrest in I bequeath to my cousin William M. Greenwood, as though he was a child of my own flesh and blood and further more the said William M. Greenwood is my sole Heir to all my Real estate Bonds and mortgages and all my personal effects what ever they may be, and as to the bequests heretofor mentioned, William M. Greenwood is to look to and see that they are all fulfilled, according to his best judgment and kindness, in faith and testimony whereof, I the said Eliza R. Thompson do declair that I have affixed my signuture to this will, as if I was personally before you and to be here under put this 21st day of March 1892 "Witness.
"Eliza R Thompson"
The genuineness of the signature of Mrs. Thompson to both these instruments is attacked by the defendants. Their theory is that both instruments were forged after the death of Mrs. Thompson,—the will first: and, this being found of no value, the forging of the contract was resorted to. They rely, first, upon the circumstances under which they were produced; and, second, upon the evidence of Mr. Ames, the celebrated expert in handwriting. No witness who had ever seen Mrs. Thompson write, or who had in any wise become familiar with her handwriting, was called by the defendants,—not even Mr. Chetwood himself, who had been her counsel for so long a time. Mr. Ames relied upon a comparison of the questioned signatures with the body of the contract and the testamentary writing, both of which are admitted to be in the handwriting of Mr. Greenwood, and a comparison of the same signatures with 4 standards produced and chosen by him out of 50 or more. He says, indeed, that he did look at the other standards, but his comparison was mainly made with the four standards in question; and he expressed the opinion that the signature to both the contract and the testamentary writing, or "will," as it was called, and will be hereafter called, was forged. Now, I stop here to say that I put a high value upon the evidence of a competent expert, so far as that evidence points out differences and similarities, and other grounds upon which a juryman, or a judge acting as such, may form a judgment as to the genuineness of the signature. In this case the evidence of Mr. Ames was of great assistance to me. I sat by his side while he gave it, attended carefully to every word he said, and to every gesture he made, and followed each item of his evidence as he went along. I have since gone all over his evidence with the same care, spending a great deal of time upon it, and examining with the utmost care the disputed signatures, and the standards used by him, and many other standards not used by him; and, without going into details, I will say that he has not satisfied me that the signatures are forged. I place little or no value upon his judgment expressed under oath, for the simple reason that it was not formed under such circumstances as to be impartial. He knew which signatures were suspected when they were submitted to him for examination, and he also knew what judgment would be agreeable to his employers, and experience has shown that in such case the mere sworn judgment of an expert is of little value. The evidence of forgery, so far as there is any, is greater as to the signature to the will. But I find no peculiarity in either of them, upon which the expert relied to distinguish them from, the standards which he used, which is not found in one or more of the mass of standards submitted which I had before me; and the few points of similarity between the signature to the contract and the handwriting of Mr. Greenwood, as shown in the body of the contract and will, is easily accounted for by the fact that all were written with a half stub pen, and that the pen was held by Mrs. Thompson, in signing the contract, in a position a little different from that in which she was in the habit of holding it.
But, in coming to the conclusion that the similarities and dissimilarities above referred to are not sufficient to establish forgery, I feel bound to say that the fact that I find no sufficient evidence of forgery in the character of the handwriting of the signatures themselves does not relieve my mind on this part of the case from the effect of the other ground of defendants' contention, viz. the history of the papers, as related by Greenwood, and the suspicious circumstances attending their production; for I have myself, recently, had a case before me where a signature was forged six times with such consummate skill that the same distinguished expert who assisted me here was unable to point out any difference between the signatures and the standards in that case, and yet the forgery was established beyond all peradventure, and so strongly and clearly that the counsel who supported their genuineness substantially threw up his brief, and the utterer has since been convicted of the crime. The evidence on the part of the complainant in support of the genuineness of the documents consists of the testimony of persons familiar with the handwriting of Mrs. Thompson, cashiers and tellers of a bank, and other business men, who express a decided opinion that the signatures are genuine; but I am not aware that their evidence is of any more value, in that respect, than my own inspection of the documents, and comparison of them with the standards. That inspection and comparison, alone, would lead me to the conclusion that they are genuine.
Now, with regard to the circumstances: Mr. Charles W. Greenwood, who lives in Pittsburgh, Pa., and who came with his brother to Mrs. Thompson's house on the 31st of January, 1892, visited her again on or about the 1st of April; and he swears that at that time he was in Mrs. Thompson's room with his brother, talking as relatives do, and that she asked William, the complainant, whether he had shown to Charles, the witness, "that paper," and he said "No." She then requested William to produce it, read, and show it to Charles; and thereupon William produced the contract in question, read it aloud, and handed it to him (Charles), and that he (Charles) then read it silently, and handed it to Mrs. Thompson, and she read it over, and, as the witness recollects, handed it back to William, though of this he is not sure. Charles Greenwood swears that on the same occasion, but not in Mrs. Thompson's presence, his brother William showed him a draft of a will which was in William's handwriting, and which William swore was the draft of the one produced, and which he had afterwards destroyed, and told him that Mrs. Thompson had signed such an instrument. Mr. Silas D. Drake swears that on one occasion he desired to sell or trade to Mrs. Thompson some real estate, and asked her to look at it, and she did, and that she requested him to show it to Mr. Greenwood; that he at first declined, but that she insisted upon it, and stated, as her reason, that all she had would, at her death, belong to Mr. Greenwood. Mr. Drake is very positive in his recollection that that was the substance of what she said, and he repeated it several times on the stand. If the evidence of these two witnesses is reliable, it goes very far towards establishing the genuineness of the contract. But let us look at the circumstances attending the production of these documents. The theory of the defendants' counsel, as already stated, is that the complainant, immediately after the death of Mrs. Thompson (which, as I have already stated, was entirely unexpected, and not at all anticipated or to be expected from anything in her age or outward appearance), forged the will, and took it to Mr. Davey; then, finding that it was of no value without witnesses, he forged the contract. Now, it will hardly be contended that he forged it during the few hours which elapsed between her death and the arrival at the house of Mr. Chetwood. He had neither time nor opportunity to do it. Yet he told Mr. Chetwood at once, on his arrival, that there was a will. He must, then, according to defendants' theory, have instantly, upon Mrs. Thompson's death, conceived the idea of forging a will, and have felt a consciousness of his ability to closely imitate her handwriting; and then there must have arisen in his mind the question of witnesses, and he must have anticipated his ability to overcome that difficulty; and then, between the time Mr. Chetwood left and the time complainant called on the undertaker, he must have written the document Then we meet the difficulty of successfully imitating Mrs. T.'s handwriting. Complainant is not a skilled penman. The case presents no circumstances which render it probable that he had been practicing to imitate her signature. Had she been in feeble health, indicating a very short life, there might have been some inducement for him to prepare for such a contingency. Then the character of the writing itself. Is it possible to believe that Mr. Greenwood would have forged such a will? What possible inducement or object could there have been for him to insert all those bequests in favor of the horse, cow, dogs, and cats? I thought at first that it might have been done to give an air of genuineness to the document; but, upon reflection, I am unable to adopt that view. There is nothing in the case, outside of Mr. Greenwood's evidence, to show that the deceased ever, during her lifetime, manifested any disposition to make any such foolish provisions, and I cannot bring myself to believe that he would have forged such a will. But I can readily understand that if she had signed such a testamentary paper, and left it in his hands, he would have felt bound, although he presumed it was probably of little value, to have shown it, delivered it, and handed it to the lawyer whom he knew to be the counsel on whom she relied at the time of her death, and that he would not produce his contract until after he ascertained what, if any, value there was in the will, or whether there was any will so executed as to be entitled to probate. He did not show himself to be a man of any great intelligence or business capacity. His habits and occupation have not, apparently, been such as to very much develop him in that direction. But it seems to me not to have been unnatural for him to have desired to know whether a will had been duly executed before he produced his contract. Then, again, he had little or no opportunity between the time of her death and the production of these papers to Mr. Davey either to practice imitating her handwriting, or to go abroad and procure an expert to do so. The contract itself does not seem to me to have been unreasonable, at the time it purports to have been made,—the 9th of March. Mrs. T. Is shown to have been a healthy person, with a more than ordinary expectation of life, and seems to have been under no obligation to anybody in the world, except her half-sister; and that was one purely of blood, and not of affection. She would naturally expect to survive her half-sister, and to be able to provide for her during her lifetime by her own hand. The contract did not prevent her from doing so. It left her in full use of, and with power of present disposition of, all her property during her lifetime, which was quite enough to support her and her sister during their lives. With her chances good for several years of life, the faithful services of a trusted relative wouldbe valuable to her, and might become quite arduous, and, if faithfully performed, well worth her whole estate. In her lonely condition, she might well feel willing to give it all for the aid and society of a faithful relative during her declining years. The evidence fails to show that she had been drinking, or was in a drunken bout, at the time the contract was executed. Dr. Pierson made her 15 visits, in all. Five of those were made on five consecutive days, commencing with the 28th or 29th of January, and running into the 1st or 2d day of February. Five more were made in the same month, and five more in March, the last one being towards the last of the month. The exact dates are not given. He says that at none of his visits, after his first visit, did he see any signs of drinking by Mrs. Thompson; that he kept her in the house, and quiet, for four weeks or more, until the broken rib was joined; and that it healed, and was joined, with the usual rapidity. There is some evidence on the part of the defendants that, during the latter half of the month of March, Mrs. Thompson did indulge in intoxicants, and she may have been somewhat intoxicated at the date of the testamentary writing of March 21st, and that may account for its peculiar provisions. But, as before remarked, the evidence tends to prove affirmatively that she was not intoxicated at or about the date of the contract. Taking, then, all the evidence, except that part of the complainant's evidence which was objected to, I come to the conclusion that the decided weight of it is in favor of the genuineness of these documents. I cannot say that the proof is absolutely conclusive, but I feel that the danger of error would be much greater in holding them forged than it would be in holding them genuine. The evidence of complainant, when we come to include that in our consideration, sustains his case throughout. He explains the writing of the will as follows: He had on several occasions expressed himself to Mrs. T. as placing little value upon her horse, which was old, or upon her cow, which was vicious and restive when being milked, and had also expressed his dislike of her dogs. On one occasion one of them accompanied him on a visit to Elizabeth, and caused him trouble, so that on his return he had threatened to kill him. This excited Mrs. T., and she asked him if that was the way he intended to treat her pets, and he replied "Yes,"—that he would get rid of all of them,—whereupon she declared she would make her will, protecting them, and it was done, with the result already stated. He says that the provision for Mrs. Henry was inserted at his suggestion. He further says that, after she had signed the will, she handed it to him to keep, and after a few days took it from him, and that for several weeks it was sometimes in his possession, and sometimes in hers, and was on several occasions the subject of mention between them; that she seemed to be contemplating some changes in it, and expressed an intention of having it redrawn by a lawyer, and properly executed, and took it with her on one occasion when she went alone to the city; and that he inferred from what she said on her return that she had procured it to be copied, and had properly executed it Finally, she handed it to him to keep, and said she believed she would let it remain as it was, without change. He declares that he fully believed at her death, and even up to the hearing, that she had duly executed a will which was a substantial copy of the paper she signed and left with him. He further says that this belief, together with the distrust which he knew she felt, and which he also felt, for Mr. Chetwood, prompted his conduct in his interviews with him just after her death, and his going to the undertaker and to Mr. Davey. He says, in effect, that he really did not know what might be the value of the document, but felt it to be his duty to show it to counsel. Taking into consideration the complainant's degree of intelligence, his mental peculiarities, in connection with all the circumstances, I think his conduct just after Mrs. T.'s death quite consistent with the genuineness of these documents.
I will recur to one other question which 1 have already mentioned. I have said that Dr. Pierson's evidence tends to show that Mrs. T. was not in one of her so-called "rack ets" at the time of the execution of the contract. His visits at that time, however, were infrequent, and she may have been somewhat intoxicated on the occasion of the execution of the contract without his knowing it. Mrs. Henry and the mulatto, John, and one of the neighbors, swear she was habitually intoxicated after complainant came there, and charge him with unduly yielding to, and in fact encouraging, her appetite for spirits. The manner of Mrs. Henry and John on the stand was such that I cannot place much, if any, reliance upon their evidence; and several other disinterested witnesses, who saw no signs of her having indulged in drink, and the effect of Dr. Pierson's evidence, as already remarked, is decidedly against the probability of her being at all disabled by drink at the date of the contract. Complainant frankly admits that he did, at her request, procure for her in toxicants from time to time, in small quantities, but that she did not drink to excess and that she was not at all under the influence of liquor when the contract was executed; and this is corroborated by what occurred when his brother made his visit, about April 1st. Moreover, complainant swears that the written contract was a mere writing out and signing of what had been talked over daily, and understood between them, from the day of his arrival. Upon the whole, then, I come to the conclusion that the contract is valid and binding on Mrs. Thompson's heir at law and next of kin.
It remains to consider what effect, if any,the so-called "will" may have upon it. It is impossible to read the evidence of the complainant, and fail to come to the conclusion that Mrs. Thompson looked upon that paper as a modification of the contract, and equally binding on complainant, and that he assented verbally to it, and promised to carry out its provisions. This he need not have done. He had, at its date, worked only 12 days under his contract, so that it was then, substantially, unexecuted on his part He might have said to her that he was unwilling to execute his part of the contract unless he was to have its fruits in full, but he did not do so. He did not protest, but, as I have said, in substance, promised to fulfill the terms of the so-called "will." And this, be it remarked, he might well do, for the only serious part of the document was the provision for Mrs. Henry and his brother. Judging from appearances, and taking into consideration the respective chances of life of the two females, Mrs. Thompson would outlive Mrs. Henry; and as he knew, as he declared, that Mrs. Thompson would be obliged to support Mrs. Henry, the cost of such support would probably and naturally come out of Mrs. Thompson's personal estate; and if, by chance, Mrs. Thompson should die first, or soon, then his labor in fulfilling his part of the contract would be so much the less, and he could well afford to support Mrs. Henry for her life. If he had protested against this testamentary disposition, Mrs. T. could have broken her contract, by discharging him, and have paid the damages by reason of such breach, which must have been small. These considerations lead me to the conclusion that it was the duty of complainant to protest against this testamentary disposition, if he did not intend to observe it; and having not only failed to protest, but having, as already remarked, substantially promised to carry it out, and permitted Mrs. Thompson to suppose that he would do so, he came under a corresponding obligation in equity. It is proper to add that, when this aspect of the case was pressed upon the learned and cautious counsel for the complainant, he very frankly conceded its strength, and substantially assented to the view above expressed.,
I will advise a decree in accordance with the above views. The provision in favor of Mrs. Henry will be enforced, upon condition that she shall place at the disposal of the court the title to the real estate in New York state, free and clear of any incumbrance put upon it by herself. I have not considered what rights Charles W. Greenwood may have under the so-called "will." He is not a party to these proceedings. Unless the parties can agree upon some arrangement, the appointment of a trustee, and the establishment of a fund, will be necessary, to raise the annuity for Mrs. Henry. I will hear counsel as to the details of the decree, and the question of costs.