Gaeta v. De Gise's Will.

Citation49 A.2d 484
PartiesGAETA v. DE GISE'S WILL.
Decision Date07 November 1946
CourtNew Jersey Prerogative Court
OPINION TEXT STARTS HERE

Appeal from Orphans' Court, Passaic County.

Proceeding in the matter of the appeal from an order of the Passaic County Orphans' Court denying a motion to dismiss caveat filed by Sebastian Gaeta against any alleged will of Carmella DeGise, dated subsequent to July 10, 1944.

Order reversed.

Syllabus by the Court

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An executor named in a first will, having no interest in the estate, except through being so named, has no right to file a caveat against a second will, where all the heirs next of kin and beneficiaries under the first will consent to the probate of the second will and oppose the filing of the caveat.

Emanuel Shavick, of Paterson, for appellants.

Winne & Banta, of Hackensack, for respondent.

LEWIS, Vice Ordinary.

This is an appeal from an order of the Orphans' Court denying a motion by appellants to dismiss a caveat filed by respondent, Sebastian Gaeta, executor named in a prior will of decedent, against a subsequent will. In July, 1944, decedent executed a will naming Gaeta and her husband as executors. In November, 1945, decedent executed another will. She died February 16, 1946, having been predeceased by her husband. On February 19th Gaeta filed a petition for probate of the first will, and on February 25th William DeGise, one of the appellants herein and the executor named in the second will, filed it for probate. On the same day Gaeta filed a caveat against any will later than the one proposed by him. With the second will there was presented a consent signed by all the heirs and next of kin of decedent joining in the petition for probate of the second will.

The present appellants, who are all the heirs and next of kin and who are all the persons who would take under the first will, but who wish the second one probated, made the motion under review here to prevent Gaeta from proceeding with his caveat. They contend that the executor, who is acting contrary to the wishes of the beneficiaries under the first will, has no standing to contest the second will, since he has no interest under the will. Gaeta asserts that he has not only the right but the duty to contest the second will on the grounds that there should be a probate in solemn form to test the questions raised by him as to incompetence, undue influence and lack of testamentary capacity.

The assiduity of counsel has failed to find any direct authority in this State on the right of an executor, purely as such and without the approval of the beneficiaries, to contest a subsequent will. The question has been passed on in other jurisdictions, with diametrically opposite holdings. But a careful examination of these cases shows that most of them were decided from the provisions or interpretation of a statute in the particular jurisdiction. In New York, for example, the then Civil Practice Act expressly gives an executor, named in a previous paper purporting to be a will, standing to contest. See In re Davis, 182 N.Y. 468, 75 N.E. 530.

But apart from statutory provisions, different jurisdictions have come to different conclusions as to the right of an executor as such only to contest. One line of cases follows the rule set forth in Bowers v. McGavock, 114 Tenn. 438, 85 S.W. 893, 896, ‘No one can question the validity of a will, or any provision in it, unless he stands in such relation...

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