
    Daniel Hildreth et al. vs. Isaac Schillenger et al.
    E. E. went to the office of S., a scrivener, who drew her will, and after it was executed, S., at the request of E. E., put it in his private secretary with his private papers for safe keeping. To the knowledge of S., the will was never sent for, or taken away by E. E., and during frequent conversations between E. E. and S., the will was spoken of. E. E. dies, and S., upon searching for the will, finds it gone from the place where he deposited it, and upon search cannot find it. He states, under oath, that he believes the will to have been clandestinely taken from his secretary; held, that the presumption is that this was the last will of E. E., and unless that presumption is overcome in some legal way, will be established.
    The evidence in this case stated, and the reasons given for the conclusion, that the evidence does not overcome the presumption in favor of the alleged paper being the last will of E. E.
    There is no reason for the court submitting the question of fact, whether a will has been cancelled, or surreptitiously destroyed, to a jury, where the evidence is such as to create no embarrassing doubt in the mind of the court.
    The bill was filed, on the 20th of August, 1852, by Daniel Hildreth and Ann his wife, George Bennet and Priscilla, his wife, against Isaac Schillinger and Jane his wife, in order to establish the will of Elizabeth Eldridge, late of the county of Gape May, deceased. The bill charges, that the decedent died seized and possessed of real and personal estate of the value of about two thousand dollars ; that in the month of May, 1851, the said Elizabeth made her last will and testament in writing, and signed and published the same in the presence of three subscribing witnesses, and attested in the manner prescribed by law for devising real estate.
    The bill sets out a copy of the will, by which it appears that, after ordering all her just debts and funeral expenses to be paid, she did give and bequeath to her daughter, Jane S. Schillinger, one of the defendants, a legacy of live dollars ; to her daughters, Ann Hildreth and Priscilla Bennett, two of the complainants, her house and farm, situate in the neighborhood of Pishing creek, in the county of Cape May, Hew Jersey, equally between them, and to their heirs and assigns for ever ; but in case her said daughter Priscilla should die without lawful heirs of her body, and the said house and farm not being otherwise disposed of at her death, then in that case she gives and bequeaths her said daughter P’s part, or moiety, to her husband, Greorge Bennett, one of the complainants, during his natural life, and at his death gives the same moiety to the heirs of the said Ann Hildreth : all her personal estate she gives equally to her daughters, Ann and Priscilla. She appoints her two sons in law, the complainants, executors. The bill charges that the said will was drawn by Ez&~ .el Stevens, an experienced scrivener of Cape May, was executed at his office, and that the said Elizabeth requested him to keep the will safely until called for; that Stevens, in the presence of the said Elizabeth, folded the said will in an envelope, and endorsed on the same “Mrs. Elizabeth Eldridge’s last will and testament,” and then placed it in his secretary with other valuable papers, and locked the same up ; that the said S. frequently saw the said envelope afterwards where he put it; that the said Elizabeth departed this life on or about the 24th day of June, 1852 ; that after her decease, the said Stevens went to his secretary to get the will, and deliver it to the executors therein named, and could not find it ; he found all the other papers safe, and in the place where he had left them, but the envelope containing the will could not be brand ; that he immediately searched and examined all his papers, but in vain. The bill charges that the said will has been surreptitiously and clandestinely spoilated, and either - destroyed or concealed, and suppressed or lost, so that the same cannot be produced and proved according to the statute of this state. The bill further shows that Elizabeth Eldridge inherited all the real estate of which she died seized of her father ; that before her marriage, and while young, she-had a daughter, the said Ann, one-of complainants ; that she afterwards married Jacob Eldridge, and by him had two daughters, Priscilla, one of the complainants, and Jane SchiUinger, one of the defendants ; that for many years before the decease of the said Elizabeth, there had been an estrangement between her and her daughter Jane; that she complained frequently of Jane’s ill-treating her, and frequently declared her determination not to leave her said daughter anything; that after the execution of the will, and before the death of the said- Elizabeth, one Jacob Schilhnger, a son of the said Jane, had, or pretended to have, businctL with the said Ezekial Stevens, and was at the office of said Stevens when said Stevens was from home, and alleging that he wanted some papers which said Stevens had drawn for him, requested that the secretary in which the said will was placed should be opened; and the family of the said Stevens, having the key, opened the said secretary, and thus the said Jacob had a full opportunity of abstracting and committing a spoñation óf said will, and that, so far as complainants have any knowledge or belief, no other person who had any interest in the will had access to the place where it was kept.
    The bill prays that the said will may be set up and established as the last will of E. E. ; that the said Ann Hilldreth may be decreed to hold one half part. of the said real estate, and one half the personal, according to the terms of the said will; that Isaac S. and wife be decreed to release, &c., and that the defendants may be perpetually enjoined from setting up aiiy claim, and from prosecuting any action, &c., as heirs at law of the said E. E., for the said lands so devised, &c., and for further relief, &c.
    To this hill the defendants, on the 18th of November, 1852, filed their answer.
    They say, it may be true that E. E. may have been seized and possessed of the real estate mentioned in the said bill; and it may be true, for aught they know to the contrary, that, on or about the --- day of May, A. D. 1851, the said E. E., being of sound mind and memory, made and duly executed the last will and testament in writing, and signed, sealed, and published the same, &c., and that it was of the tenor and effect as alleged; and it may be true that the said last will was drawn by E. E. and was duly executed, and the same may have been left by the said E. E. in the hands of the said S. for safe keéping, and the will may have been placed, &c.; but as these defendants are entirely ignorant of all said matters, and know nothing about the existence of any such will, or4,hat. the said E. E. left any will, they pray that the complainants may be put to strict proof of all said allegations at the hearing.
    All the other material facts charged in the bill are answered in the same manner as the foregoing.
    To this answer a replication was filed, and proof taken.
    The complainants examined the three subscribing witnesses to the alleged will, and no others.
    The defendants examined Jacob E. Schillinger only.
    
      A. Browning, for complainant,
    cited 2 Sto. Eq. 1445 — 9; 2 Greenleaf, § 680, 681; 1 Jarmin 119; 8 Watts & Serg. 285; 2 Barr. 110; 3 Iredell 303; Bailey et al. v. Miller et al., 1 G. C. R. 223; Den. v. Brown, 4 Cowen 490.
    
      J. T. Nixon, for defendants,
    cited 2 Richardson’s Rep. 191; Lilly v. Lilly, 5 Ecc. Rep. 67; 6 Wend. R. 195.
   The Chancellor.

The bill alleges—

1st. That Elizabeth Eldridge, in the month of May, 1851, made and executed her last will and testament in due form to pass real and personal estate.

2d. That at the time of her death, in June, 1852, this will had not been in any manner revoked or cancelled by her; but that during her lifetime, without her knowledge or consent, it was surreptitiously taken, by some person unknown, from the possession of the scrivener who drew it, and with whom it had been left by Elizabeth Eldridge for safe keeping, and was destroyed or is concealed, or if not so taken, that the said will has been lost.

3d. That the complainants are devisees and legatees under that will, and that the copy set out in the bill is a true copy of the will that was so executed by the said Elizabeth Eldridge, and is now missing.

The bill prays that the alleged paper writing may be established as the last will and testament of the said Elizabeth Eldridge.

If the several foregoing allegations are sustained by the proofs in the case, then the complainants are entitled to the decree of this court establishing the will.

Ann Hildreth, one of the complainants, is an illegitimate daughter of the decedent. Priscilla Rennet, another complainant, and the defendant, Jane Sehillinger, are the legitimate children and only heirs at law of the deceased. The property in dispute was inherited by Elizabeth Eldridge from her father, John Taylor. If Elizabeth Eldridge died intestate, Ann Hildreth is cut off from all participation in the property. If the will is established, all that Jane Sehillinger takes under it is a legacy of five dollars.

That Elizabeth Eldridge, in the month of May, 1851, executed a will, and that it was in due form to pass her real as well as personal estate, is placed beyond dispute by the testimony. The three subscribing witnesses to that will have all been examined as witnesses. Their, evidence agrees in every particular, and proves all the requirements of the statute as regards the execution of the paper.

The contents of that will are satisfactorily established. Ezekiel Stevens, the scrivener who drew the will, is one of the judges of the Court of Common Pleas of the county of Cape May. The draft of the will, which appears by a copy produced by Judge Stevens, and his evidence in the cause, show him to be a gentleman of intelligence and experience in such matters, and a witness upon whom the court can rely with confidence. The contents of the paper are very simple, and of a character which the witness would not be likely to forget. A legacy of five dollars is given to one daughter, and the residue of the personal estate, after the payment of the funeral expenses and debts, is equally divided between two other daughters. The real estate is given to two of the daughters. The accuracy of the witness, as to the contents of the paper, nor indeed as to any other matter to which he gives testimony, is not questioned by any counter evidence in the cause. The witness produced a paper, which he says is a copy of the will he drew. He made this copy from his recollection of the original, soon after the death of Mrs. Eldridge. He believes it to be correct, and says, if it is not word for word, it is very nearly so ; the substance is the same.

Was this will ever revoked or cancelled by Mrs. Eldridge? This is really the only contested point in the cause.

In the month of December, 1850, Mrs. Eldridge gave to Judge Stevens a memorandum by which to draw the will. He drew it, and sent it to her. The witness says. In the month of May, eighteen hundred and fifty-one, she drove to my house in her carriage; Mr. Hildreth was with her; she stated to me that she had then come to get that will or writing, as she expressed herself, executed, she went with me into my office, and handed to me the same instrument that I had written for her in December previous, and that I had put in the envelope for her; 1 then asked her if that will was drawn as she wished it, and according to her directions, and she replied that it was, in every respect; as the will lay before me, I then filled up the blanks with the day and the month, and the year, and put a seal to it; she then sat down, took a pen, and wrote her name to the will in the presence of myself, Andrew H. Stevens, and Martha S. Swain; after she had signed her name to the will, I asked her, placing my finger upon the seal, her hand being still upon the paper, if she acknowledged that to be her hand and seal; she replied that she did. Before we signed our names a,s the witnesses, I held up the paper which she had just signed, and asked her if she acknowledged that to be her last will and testament, and she replied that she did. We then sat down and signed our names as witnesses to it, namely myself, my son, and my daughter, Mrs. Swain, after doing which I folded it up, and remarked, I believe it is now executed Mrs. Eldridge. .She then observed to me, c I wish you would now take this will, and take care of it until it is called for.’ I told her, if it was her wish, I would endeavor to take care -of it for her; I took a piece of yellow paper, folded it up in letter form, and put the will inside of it, then put three wafers to it, one in the centre and one on each side, and stamped them down. I then wrote upon it a subscription in a large legible hand,- ‘ Mrs. Elizabeth Eldridge’s last will and testament.’ She was sitting by, and I observed to her, now, if I should die before this is called for, they will know what it contains by the subscription upon the back of it; I then took the will, and put it into a small recess in my secretary along with a number of other valuable papers. Between the time of placing it there and the time it was called for, I remember seeing it precisely where I had placed it. After the death of Mrs. Eldridge, which occurred in the latter part of June last (1852), I think, I was going in the neighborhood where her executors lived, and I went to my secretary, where I had put the will, to get it, for the purpose of delivering it to the executors. I took down the bundle of papers from the recess where I had deposited the will, and looked over them all for it, but it was not there, although all the other papers belonging there were there ; the will was, however, gone; I have since then made a thorough, careful and minute search, through all my papers for the will, but have not been able to find it; I am fully satisfied, from my examination that the will is lost, spoilated, or destroyed ; to the best of my knowledge and belief, no person had access to my secretary which contained that will, except myself and my family.”

He further says, “Elizabeth Eldridge never did call upon me to take that will out of my hands ; she never did afterwards express any dissatisfaction in reference to that will, and I never afterwards had any conversation with her about the will; I saw her several times after the will was drawn, and had conversation with her, but she said nothing in relation to the will.”

The fair legal presumption from this evidence is, that the will drawn by Judge Stevens is the last will and testament of Elizabeth Eldridge. Unless that presumption is overcome, that will ought to be established by a decree of this court.

There is no evidence that Mrs. Eldridge ever made any other will than this one ; there has been no intimation that she did, and there is nothing in the case to justify the suggestion. The defendants examined one witness, Jacob Schillinger, and they insist that, by him, they prove the voluntary destruction of the will in question by the decedent. Here lies the real issue between the parties.

Jacob Schillinger is the son of Jane Schillinger, who is cut off by this will with a legacy of five dollars. The bill insinuates that Jacob Schillinger surreptitiously took this will from the secretary of Mr. Stevens. It alleges that he pretended to have business with Judge Stevens, and that he went to his office when he was from home, and requested that the secretary might be opened for the purpose of Ms getting Ms papers ; that the secretary was unlocked by one or the judge’s family, and that Jacob Sehillinger had a full opportumty of abstracting and committing spoliation of the will, and that he was the only person interested in its destruction that ever had the opportumty of destroying it.

The complainants did not even attempt to prove the fact upon which this insinuation was founded. Jacob Schillmger being produced as a witness on behalf of the defendants, the complainants, upon cross-examination, questioned him as to the circumstance wMch excited the suspicion against him. He admits he went to Judge Stevens’ to get some papera, and he not being at home, Mrs. Stevens unlocked the secretary. He says he saw no paper there with Mrs. Eldridge’s nam& on it; that he did noi touch or take hold of any papers in the secretary ; that Mrs. Stevens looked for, but did not find them. He says he did not look for them ; that he took no papers away with him. Judge Stev'ens was then recalled, and testifies that he had been drawing some papers for Jacob Schillinger.

The evidence entirely exculpates Mr. Sehillinger, and takes away every suspicion of the will having been taken away by him.

But, as I said, this witness is relied upon by the defendants to prove that the decedent herself destroyed the will. Mrs. Eldridge occupied a part of the house of tMs witness. After testifying to a conversation he had with her in reference to her will, he states, “ I had another conver sation with her upon the same subject, about a week 01 two before they moved her over to Darnel Hildreth’s. This was after she had been sick and confined to the house. It was in the morning after I had taken into her room an arm-load of wood. She was scolding about my grandfather’s will, and complaining that he had left her nothing, and so on ; she said that her children were all tired of her, she guessed, and that Mrs. Hildreth had insulted her the night before, and that Mrs. Hildreth would be sorry for it after she was gone, or something to that effect; she was sitting upon her bed; she then got up and went to her bureau, and took something out of it, and said that there should be no such quarreling about her will as there was about your grandfather’s and stuck it into the stove, and then said, say nothing to uncle Daniel and aunt Haney,’ and that was the last I ever heard of the will until I was charged with taking it in the bill filed in this cause. It was a paper that my grandmother took out of the bureau; it was yellow paper, I recollect that much about it.”

Was this the will? She did not say it was, but she certainly intended to impress the witness with the belief that it was. Was there any inducement for her to mislead him ? If she intended to destroy the will, and to make Jacob Schillinger the witness of its destruction, there was no need of her adopting this mysterious way of doing it. If she intended only to make him believe she had destroyed the will, her mysterious manner is accounted for The witness had heard of her having made her will. He had conversed with her on a previous occasion respecting it. He had reproached her for “ cutting off ” his mother, and she had told him she would destroy it. She was now in his house sick. He was performing for her acts of kindness, and it was natural she should desire to allay his irritated feelings in reference to the matter. But in order to arrive at the conclusion that this was the will, we must solve the question, how it came into her possession ? That the will was left by her with Judge Stephens for safe keeping, and that it was for that purpose, by him, locked up in his secretary, there cannot be a doubt. If it was obtained by her, it was without the consent or knowledge of Judge Stevens. She could not have obtained it herself. She was an old woman, upwards of seventy years of age, and that she, by any means could herself have procured the paper from the place where it was so securely deposited without the knowledge of some one, is not within the range of probability. Was it obtained for her by some third person? If so, where is that individual? Could it have been obtained by any one without the knowledge of Judge Stephens, or of some one of his family, unless in a stealthy manner and for an unlawful purpose ? The whole of the case, then, lies just here. Does the presumption of that paper’s being the will which Jacob Sehillinger saw the old lady put into the stove, overcome the evidence in the cause, that the will, which she left with Ezekiel Stevens for safe keeping, was never taken out of his possession with her knowledge or consent ? I am satisfied that this was the last will and testament of Elizabeth Eldridge, and that it was never revoked or cancelled by her.

The defendants’ counsel insisted that this question ought to be submitted to a jury. The. only object of directing an issue would be to inform the conscience of the court. If I had a doubt which embarrassed me in forming a judgment upon the question, such an issue would be proper. The only object would be to relieve the court from doubt. As no such doubt exists, it is my duty to decide the case upon the evidence before me.

There must be a decree establishing the will, the costs of this suit to be paid out of the estate.

Cited in Carlisle v. Cooper, 6 C. E. Gr. 590.  