[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 306
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 307 The complainant seeks to enforce an alleged oral contract made with her father, the defendants' testator, that "she would receive from her father, after his death everything that he owned" in consideration of her agreement to give up her home in Nyack, N.Y., live with him and his wife and take care of them for the rest of their lives.
Following the complainant's divorce from her first husband in 1928, her father and mother sold their house and came to live with her in Nyack. In 1931 the father inherited property in Hackensack in which all three moved, the daughter selling her home in Nyack. The mother was in poor health and the complainant kept house and looked after her until her death in 1936. The complainant continued to keep house for her father until September, 1941, when she went out West without telling her father where she was going and remarried. The first the father knew of it was by a telegram. The complainant and her new husband lived with the father until September, 1942, when the husband's place of employment was transferred to Cincinnati. The father remained alone in Hackensack until he died in September, 1943. By his will executed in December, 1941, after the daughter's remarriage and while she and her husband were still living with him, he expressly disinherited her "as I have advanced substantial sums of money to her during my lifetime which I consider an ample remembrance from me for reason best known to her".
The evidence concerning the alleged oral agreement of the testator to will the property to the complainant is slight. An old friend of the testator testified that the complainant's parents wanted her to sell her house and go to Hackensack with them since there was no point in her continuing to work and stay in Nyack alone, inasmuch as they had sufficient money for *Page 308 all three to live on, and that the complainant could "take care of them in Hackensack and look after the home until they die". The furthest his proof went was:
"Q. Did they say anything about property? A. After we are gone, you know you are the only one we got, everything going to belong to us (you)."
A second witness for the complainant, another friend of the father, testified that the testator had said:
"Yes, this property will be very valuable some day, Margaret will be well off, it is all hers after I die."
Only the complainant's husband testified that the testator had spoken in terms of an agreement:
"Q. Did he say anything else as to the relationship between him and his daughter? A. He mentioned the fact when he was gone everything was going to go to Margaret; there was some oral agreement he had with her.
Q. What was the agreement? A. All the property would go to Margaret.
Q. In return for what? A. Being his daughter and only heir and also because of services she was rendering."
The evidence of the two friends amounts merely to an expression of an intention of the testator to leave his property to his daughter as the natural object of his bounty; it does not sound in contract. Even part of the husband's testimony ("when he was gone everything was going to go to Margaret * * * being his daughter and only heir") goes no further. What remains ("some oral agreement he had with her * * * because of services she was rendering") falls far short of establishing by clear and convincing proof a contract to devise in terms definite and certain, which equity requires, among other prerequisites, before it will decree its enforcement. Cooper v. Colson, 66 N.J. Eq. 328 (E. A. 1904).
Even if the contract had been proved by the strict test of equity, the complainant could still not prevail, for she failed, even on her own theory, to take care of her father for the rest of his life. True, she did the housework in the home in Hackensack and nursed her mother in her last illness, but she left her father in 1941 to go out West to get married and she left *Page 309 him again in September, 1942, to go with her husband to his new place of employment in Cincinnati, doing nothing to look after her father during the last year of his life. The character of her services up to the time she left has also been called into question, the complainant's witnesses testifying to the father's expressions of satisfaction, while the defendants' witnesses recalled his complaints. It is undisputed that in connection with the complainant's moving to Cincinnati an altercation occurred between father and daughter over the property the daughter was proposing to take with her, which became so heated that the Hackensack police were summoned. The complainant manifestly did not herself perform the contract on which she is seeking to recover.
Appellant further argues that it was error to admit in evidence over her objection a paper writing done by the pen of, and signed by, the decedent on September 12, 1942. The proper study of that instrument requires that it should be stated in full. It follows:
"Hackensack, New Jersey — Sept.12/1942
To Whom It May Concern:
I regret very much to make a statement of this kind, but I consider it very essential, as it will undoubtedly clear up a condition which may possibly follow after my death or possibly before my demise.
About the fall or early winter of 1928 or 1929 I sold my property on Depot Place, South Nyack, N.Y. Wife and I then went to live with my daughter Margaret W. Wills on Piermont Ave., Nyack, N.Y., her home.
I lived in her house until about March 1931, she having divorced her husband.
During this period, I paid all expenses such as food, the interest on her mortgage, insurance, taxes. She paid no board, nor the cost of woman to help my wife on Friday of each week. I paid for coal to heat the house, put in three windows in kitchen, new sink and changed the wiring in the house, painted kitchen.
In 1931, March or April, I moved to Hackensack, N.J. to live at 469 Main Street, my father and stepmother having passed away.
She was working at the time (that is my daughter), gave up her position and lived with my wife and I at 469 Main Street.
She had no expenses whatever, and we made it very pleasant for her. *Page 310
I bought her a car costing $1,006.00, Chrysler Coup, Rumble. Two consecutive years I paid for two trips to California to visit a friend. The two trips and stay in California costing about $1,000.00. I paid a dentist bill for $75.00 contracted while living at Nyack, New York.
I paid the insurance, repair, license plates on her car for four or five years, Habrich Co. Two weeks to Asbury Park, New Jersey for a number of years.
I paid for her wearing apparel and shoes during this period from March 1931 to January/41.
My wife passed away first of February 1936, and she continued to live with me, but life became unbearable two years ago. She called in a doctor from Medical Center, New York City, to examine me, and hoping that I would be put away.
I had a nervous breakdown, and while I was very sick, she had both Mackay and Greint, attorneys, come to the house, without my solicitation and forced me to sign a will, and Mackay and Freint were the only people present, I presume as witnesses. I regained strength, and found the paper at Hackensack Trust Company. That was her method of getting the property in her name. I had the will destroyed.
I have since then lived a life of Hell. I gave her power of attorney to collect the rents at property 342 Main St., Hackensack, New Jersey.
I have never been able to receive an accounting.
In ten years she has had about $5,000.00.
Signed John H. Stertzer."
The date of the writing was nine months after the execution of the decedent's will, three days before complainant permanently left the decedent's home — so respondents allege and as may, for the purposes of the argument, be assumed — at about the time when father and daughter disagreed concerning the attempted removal by the latter of certain personal property. It is contended that those incidents imparted admissibility to a writing which would otherwise have been clearly prohibited as hearsay. Any dispute between the two as to which owned specific pieces of household furniture is of no significance in this litigation. The present suit is to obtain the real estate and personal property which belonged to the decedent at the time of his death or, failing that, to be awarded damages for the alleged breach. The execution and existence of the will is not attacked either for incompetency, fraud (except for the allegation that the making of it was a fraudulent disregard of the contract), undue influence, defective execution or otherwise. The complainant alleged a contract and the fulfillment thereof *Page 311 by her; the defendants deny the making of a contract and allege a breach by complainant if there was a contract. Those were the issues.
Explanatory words uttered coincidentally with the happening of the event may be admissible; words which are merely narrative of conditions are not. Burdge v. Retail Department Stores ofAmerica, Inc., 130 N.J.L. 81 (E. A. 1943); Thompson v.Giant Tiger Corporation, 118 N.J.L. 10 (E. A. 1937).
The declaration was highly self-serving. Generally a party may not make evidence in his own behalf either by oral or written statement. The death of a party does not give admissibility to a self-serving declaration otherwise inadmissible, Gilbert v.Gilbert Machine Works, 122 N.J.L. 533 (Sup.Ct. 1939), except in jurisdictions where the rule has been changed by statute (as, e.g., Filosa's Case, 4 N.E.2d 439 — Mass. 1936). Not only has the rule not been changed by statute here but, as we shall presently note in greater detail, we have a statute which, in its application to this case, would make the proposed deviation particularly inequitable.
The danger in admitting hearsay testimony turns upon the absence of time-honored bulwarks for the ascertaining of truth. Such testimony is not given within the solemnizing atmosphere of the court room, it is not given under oath, it is not subjected to the searching scrutiny of cross-examination. There are recognized exceptions to the rule against hearsay testimony, but the exceptions are based upon reasons which countervail the objections just stated; reasons which may be consolidated in the supposition that the circumstances surrounding a given event afford a sufficient probability of the truth to enable the jury or other fact-finder to appraise their worth. Such an exception is the dying declaration which, when admitted, derives its sanction from the fact that it is made in the view and expectation of approaching death; the situation of the party, under such solemnizing circumstances, creating an authentication equally impressive with that of an oath administered in a court of justice. Donnelly v. State, 26 N.J.L. 463, 497 (Sup.Ct. 1857). *Page 312
The admission of res gestae is sometimes treated as an exception to the rule against hearsay and sometimes as a distinction from hearsay because of the connection with the principle fact under investigation. But, however, classified, the admissibility of the proofs as res gestae has as its justifying principle that truth, like the Master's robe, is of one piece, without seam, woven from the top throughout, that each fact has its inseparable attributes and its kindred facts materially affecting its character, and that the reproduction of a scene with its multiple incidents, each created naturally and without artificiality and not too distant in point of time, will by very quality and texture tend to disclose the truth. And this is the principle which is relied upon to justify the admission of the disputed paper. But the element which in our opinion distinguishes this case from all of the decisions, except where statute has otherwise enacted, relied upon in support of the admission, whether as res gestae or hearsay, is that the instrument, far from being a natural or inartificial outflow from an incident, or an uncalculated offshoot from the occurrence of an event, is a deliberate compilation, purporting to give a history of events, transactions and accusations bearing upon the relations between father and daughter, covering a period of many years, characterized by the author as a statement, and definitely aimed at making evidence for an anticipated lawsuit. Decedent's creative mind consciously and purposefully intervened between the events written of and the writing and, with intention, placed its design upon the writing. What the decedent wrote was not the involuntary reaction of mind to incident; it was a carefully prepared brief giving the writer's version of his relations with his daughter for a period of fourteen years. There was nothing natural or inartistic or undesigned about it. The writer could hardly have said more plainly that he anticipated a lawsuit either before or after his death — presumably after because the cast of the writing assumes that the writer will not be present in person to tell his story — and that the writing was by way of stating that which the writer desired to have accepted as the truth. Whether considered in its aspect toward the entire situation or narrowly with respect to *Page 313 the imminent departure of the daughter to a new home, the statement was not a natural reaction to an incident, not a casual remark or notation reflecting the writer's frame of mind; it was a composition studiously framed for the purpose of persuading others to support him or his personal representative against a claim which he expected his daughter would make by legal action. The controversy had arisen. True, suit papers had not been prepared or served, but the writing was done against precisely that eventuality. The writer may have had a distorted mind, he may have been telling deliberate falsehoods, he may have been telling falsehoods believing them to be true, he may have been telling the truth; but what he said was said for the purpose of making evidence and was said outside of a court room, not under the solemnity of an oath, not with opportunity to his adversary for cross-examination, not in the presence of death, not spontaneously in response to an exciting cause; in a phrase, not with any of those credentials which an adverse litigant is ordinarily entitled to expect by way of authentication before testimony is admitted against him.
In Hunter v. State, 40 N.J.L. 495 (E. A. 1878), Chief Justice Beasley approves the language of Wharton (page 538): "The res gestae may therefore be defined as those circumstances which are the undesigned incidents of a particular litigated act * * * not produced by the calculated policy of the actors"; and again, at page 540, he justifies the admission of the declarations there under consideration as "the natural and inartificial concomitants of a probable act, which itself was a part of res gestae. In such a status of the evidence, I should think that the exception to the principle that rules out hearsay had been carried to its extreme limit, but without transcending such limit". Affirmation or restatement of the rule in whole or in part will be found in many of our reported cases inter alia;State v. Kane, 77 N.J.L. 244 (Sup.Ct. 1909); Murphy v.Brown Co., 91 N.J.L. 412, 416 (Sup.Ct. 1918); State v.Ehlers, 98 N.J.L. 236, 246 (E. A. 1922); State v. Doro,103 N.J.L. 88, 94 (E. A. 1926); Slayback Van Order Co. v.Eiben, 115 N.J.L. 17, 21 (Sup.Ct. 1935); State v.Metalski, 116 N.J.L. 543, 554 (E. A. 1936); State v.Then, 118 N. *Page 314 J.L. 31, 38 (Sup.Ct. 1937); State v. Stephan, 118 N.J.L. 592,602 (E. A. 1937); Rainess v. Grant Finishing Co.,Inc., 133 N.J.L. 611 (E. A. 1945); Kupfersmith v. Law,c., Insurance Co., 80 N.J.L. 432, 435 (E. A. 1910). InKelly v. Pitney, 98 N.J.L. 773 (E. A. 1923), the decedent had made a will wherein he made gifts to two domestics provided they were in his employ at the time of his death and his later notation upon the envelope containing the will that the persons had left his employ on the day of the notation was held admissible But that was little more than the equivalent of a bookkeeping entry. As the court observed: "It * * * was the natural thing for the testator as a business man to do in the circumstances", and again, quoting Wigmore on Evidence: "The statement * * * must appear to have been made in a natural manner and not under circumstances of suspicion". It is clear that the word "natural" was there used, as it was in the Hunter case,supra, in antithesis to the words "artificial" and "designed" and that the phrase "under circumstances of suspicion" has the meaning communicated by Chief Justice Field of the Massachusetts Supreme Judicial Court in Commonwealth v. Trefethen,157 Mass. 180, 31 N.E. 961, 966 (1892), in this language: "and the declaration if made, was made under circumstances which exclude any suspicion of an intention to make evidence to be used at the trial". See, also, Schloss v. Trounstine, 135 N.J.L. 11,14 (Sup.Ct. 1946).
The complainant twice attempted in the course of the hearing to testify to the transaction sued upon and was each time barred on defendants' objection grounded in R.S. 2:97-2, which provides that "* * * when one party sues or is sued in a representative capacity, no other party thereto may testify as to any transaction with or statement * * * by the decedent unless * * * the representative of the decedent offers himself as a witness on his own behalf and testifies to any transaction with or statement by his testator, intestate * * * in which event the other party may be a witness on his own behalf as to all transactions with or statements * * * by the decedent, which are pertinent to the issue * * *". Defendant Hackensack Trust Company is the testator's *Page 315 executor. No officer or employee of the executor became a witness. The disputed paper came in as an exhibit by reason of a question asked of complainant by the defense whereby she was called upon to identify the writing of the signature as the handwriting of her father. The design of the legislation "is to produce equality between the parties to such a suit, by silencing the one who may, by his own mouth, be able to testify to transactions and conversations with the decedent, possibly to the disadvantage of his estate, unless the representative of that estate should, by his own conduct, remove the interdict".Woolverton v. Van Syckel, 57 N.J.L. 393 (E. A. 1894). The defendants' objection was well grounded in the statute and the Vice Chancellor properly excluded the complainant's testimony. While the admission of decedent's written statement destroyed the reason for the inhibiting statute, it did not furnish the statutory exception to the inhibition. We do not know whether the testimony which complainant, if permitted to testify, could give would have presented a different factual picture, but a rule of law which would admit her father's account of the transactions between him and her and at the same time exclude her account seems to be inequitable. Whether or not this of itself would be sufficient to bar the defendants from introducing the declaration, it points to one of the difficulties, and suggests others, in the way of a judicial wrenching of a single rule of evidence from its accepted position with relation to the general field of law on that subject.
We consider that the admission of the disputed paper was contrary to the holdings in this state and to the great body of juridical holdings throughout all of the jurisdictions, and that it constituted error; not, however, harmful or reversible error, because, as we find, the complainant did not carry the burden of proving the making of the alleged contract and her performance of what she conceded to be her obligations under the alleged contract.
The decree below will be affirmed, with costs.