Opinion
Submitted May 26th, 1933.
Decided September 27th, 1933.
Since there was no reasonable basis for the contesting of the will on the grounds of undue influence and incapacity, there was no basis for the allowance of a counsel fee to counsel for the contestants.
On appeal from a decree of the New Jersey prerogative court, whose decision is reported in 111 N.J. Eq. 592.
Messrs. Cole Cole, for the appellant.
Mr. William I. Garrison, for the respondent.
The executors of the will of Amelia Graig Tobin appeal from a decree of the prerogative court awarding a fee of $5,000 to counsel for the contestants. This was a reduction of $2,500 from the award in the orphans court. The sole question before us is the reasonableness of the contest. The two grounds of contest were undue influence and incapacity. The testatrix had independent advice. There is not a suggestion in the record that the beneficiaries exerted the slightest influence over any of her acts. In fact, the contestants' proofs demonstrate nothing except that there were frequent quarrels and bickerings between testatrix and the principal objects of her bounty. Everything proved indicated that testatrix disposed of her estate, as she had long planned, to the objects of her affections.
As to mental incapacity, the evidence indicates more than usual mental alertness. Since there was no reasonable basis for the contest, there was no basis for the allowance.
The decree will be reversed.
For affirmance — PARKER, HEHER, PERSKIE, JJ. 3.
For reversal — THE CHIEF-JUSTICE, TRENCHARD, CASE, BODINE, DONGES, VAN BUSKIRK, KAYS, HETFIELD, DEAR, WELLS, DILL, JJ. 11.