Prerogative Court. Decree of the Ordinary in the case of C Mooliss’ Will

Filed April 27th 1802 John Beatty Register

Entered in Minutes Apr: 27. 1802

In the Prerogative Court in & for the State of New Jersey, On an appeal by Josiah Foster Esq. From a decree by the Orphan’s Court, of the County of Burlington, in the case of the Will of Charles Mooliss an Indian; wherein the said Josiah Foster is named Executor & against the probate of which Will, a Caveat was entered by Joshua Kekalah on behalf of himself & other Indians.

Before Joseph Bloomfield, Esq. Governor, and Ordinary or Surrogate General. - at Trenton, in said State, the said appeal, on the said will, came on to be heard & debated, on Tuesday the thirteenth day of April, in the Year of our Lord, Eighteen hundred & two, & continued to be heard & debated, from the said Tuesday to Friday, the sixteenth day of the same month & year in the presence of Richard Stockton, William Griffith, and Joseph McIlvaine, Advocates for said Foster, the appellant - and Joseph Read, Aaron D. Woodruff & Lucius Horatio Stockton Advocates for the said Joshua Kekalah & others [opposed].

From the testimony taken before the said Orphans Court & now before the Prerogative Court, the Ordinary is of Opinion:

That the said Charles Moolis, the Testator, in the said will named, was always esteemed of sufficient capacity to take care of his own Person, & had the management of his own property: - that he made contracts without the advice & sometimes [like] other Indians, with the advice of his white neighbours; & often exercised his own opinion in preference of their Judgment - indeed there are no facts proven, which authorize the Ordinary to say that the said Mooliss was incapable of imbecility of mind or otherwise to make a will previous to the ninth day of September, seventeen hundred and ninety-seven.

That from the testimony of the Instrumental Wittnesses supported by the weight of Evidence taken before the Orphans court the Ordinary is of the opinion that the said Mooliss was of legal capacity & was of disposing mind & memory on the day & at the time of the execution of the will in question.

But it is alledged that the said Mooliss was not a free agent - that the said Foster exercised an undue influence over & fraudulently took advantage of him - that Mooliss could not read - that the will ought to have been read to him in the presence of the subscribing witnesses, & that the highest evidence the nature of this special case required has not been given; & therefore probated of the will ought not to be granted.

The reading of the will of a person who cannot read in the presence of the subscribing witnesses to the will is not absolutely necessary, and there shall be otherwise satisfactory proof that the person who executed a will knew and approves of the content thereof.

It appears from the evidence taken in this case that on the eighth day of September 1797, the said Foster called on Phineas Kirkbride & Daniel Joice & told them that Mooliss was very bad, that he was about to settle his affairs & to have his will executed & requested the said Kirkbride & Joice to attend next day as witnesses. That on the next day the ninth day of September 1797 Foster called again on Kirkbride & requested him to go to the house of Mooliss to witness his will - That the said Daniel Joice & his son William Joice went to the house of Mooliss about Day light on the morning of the said ninth day of September - That within an hour there after the said Foster & Kirkbride also met at the house of Mooliss - That Foster in their presence informed Mooliss he had brought the will - The witnesses were desired to withdraw - after some little time the wittnesses were called in - & Foster wrote about half an hour in the presence of Mooliss & the witnesses - That Foster a second time requested the wittnesses to go out, that he might read the will to Mooliss - they accordingly withdrew, & after some little time they were called in the second time. Sickness had reduced Mooliss to a low & feeble state of body - He was raised in his bed by Foster who sat beside him & pointed with his finger to Mooliss, where to make his mark and assisted Moolis to guide his hand whilst Moolis made his mark, being an act of necessity from the debility of Mooliss & not of force -

Phineas Kirkbride wrote "Charles Mooliss his mark" - Mooliss acknowledged the writing to be his last will & testament - the said Phineas Kirkbride, Daniel Joice & William Joice subscribed the same as wittnesses, after which the will by desire of Mooliss was given to the said Kirkbride to keep. In a few minutes thereafter, Mooliss told Foster that he must settle all his business & pay his debts, & mentioned several persons to who he said he owed money - among others he mentioned two of the witnesses Kirkbride & Daniel Joice & what accts. No questions were asked Mooliss about his debts, he spok of them voluntarily.

William Joice one of the subscribing witnesses was of opinion that Mooliss was not of sound mind at the time of the execution of this will; but does not mention any facts to induce this belief, against his own attestation of this will & the very positive & particular testimony of his Father Daniel Joice & of Kirkbride the two other instrumental wittnesses, supported by the testimony of several wittnesses to whom Moolis the next day & at divers other times mentioned the content of his will which was drawn for him by Foster, who Mooliss said he had always found his best friend & also had done more for him & his family than any body else. - That Foster should have his land; for after his death, there would be none of his family left. - Moolis mentioned the contents & his entire satisfaction of this Will, & particularly that Foster was to have his Land, to a near neighbour within ten days or a fortnight before his death, which was on the tenth day of February 1798.-

Mooliss often mentioned that his Will was with the said Kirkbride, who lived about a mile from him & who conversed with Moolis often said after he got bravely & in such health as to walk about & labour a little, at his usual employ of making brooms Mooliss at any time could have obtained & destroyed this Will if he had been so disposed for he could not have prevented him doing it - He was a free agent 7 not in fear of Foster - Nay, it appears Mooliss was often Importuned on this subject & then he did talk of obtaining & burning this will & of making another Will - but any words in the future tense, expressive of his intention to revoke this will cannot amount to a revocation of his will, for no will or testament in writing can be revoked by any words or will by word of mouth only, but must be committed to writing and legally proven, agreeably to the Laws of New Jersey Therefore all the [uttering] of Mooliss about or against his Will, when he knew it was in his power to have destroyed it or have made another will can have no legal operation on this occasion. Moolis had daily & uninterrupted access to every person he came to visit or converse with for five months after the making of this will, and indeed it seems no little pains was taken to persuade him to make another will and a person was actually sent to him & offerred to draft another will, but the Indian had sanity enough always to evade those importunities and adhere to the man on whom he had rested confidence, who he always esteemed his best friend, & whose care & protection he had intrusted those who, with this tried friend, according to this will, he had declared should have his property after his death.

No facts are stated in any part of the evidence taken before the Orphan’s court which prove that either threats, force, flattery or any undue influence imposition or fraud was made use of by Foster to procure this will, & they cannot be presumed.

The Indian as well as White Man, & indeed every person has a right to dispose of his own as he shall direct by will, & which power is favored in law. The Prerogative Court has Jurisdiction of fraud relating to testament of personal estate & tho this is a next will concerning goods & Lands, and the Ordinary is of the Opinion that no fraud or imposition existed in the execution of this will, Yet probate of this will cannot prejudice the heirs to the land, for the heirs may not withstanding, have the allegation of fraud or imposition tried at Law on Devisavit vels non being matter proper for a Jury to inquire into.

The ordinary being of opinion that the will in question was written by the direction of the said Mooliss, & the contents thereof satisfactorily made known to him previous to the execution; that he was of Sound & disposing Mind & Memory at the time of the execution thereof & that it was duly executed in the presence of the said Phineas Kirkbride, Daniel Joice & William Joice, doth therefore declare order & adjudge that the said decree of the eleventh day of September, seventeen hundred & ninety-eight of the said Orphans Court of the County of Burlington, be reversed vacated & annulled & probate of the said Will of the said Charled Mooliss is hereby declared Ordered adjudged & Decreed; that letters testamentary thereon be forthwith granted and issued to the said Josiah Foster, Esq. The Executor therein named.

Trenton April 27th 1802

Joseph Bloomfield [Governor]