Hartung's Estate, In re, A--608

• Decision Date: 19 November 1958
• Docket Number: No. A--608,A--608
• Citation: 145 A.2d 798,52 N.J.Super. 508
• Parties: In the Matter of The ESTATE of Edith H. HARTUNG, Deceased. . Appellate Division
• Court: New Jersey Superior Court — Appellate Division

Page 508

52 N.J.Super. 508

145 A.2d 798

In the Matter of The ESTATE of Edith H. HARTUNG, Deceased.

No. A--608.

Superior Court of New Jersey Appellate Division.

Argued Nov. 17, 1958.

Decided Nov. 19, 1958.

Irving C. Evers, Hackensack, argued the cause for appellants (Albert O. Scafuro, Hackensack, attorney).

John D. Morrison, Wyckoff, argued the cause for respondents.

Before Judges GOLDMANN, FREUND and HANEMAN.

The opinion of the court was delivered by

GOLDMANN, S.J.A.D.

The sole beneficiary under the last will of Edith H. Hartung, together with the executor, appeal from a judgment of the County Court, Probate Division, declaring the will invalid and setting aside the judgment of the surrogate admitting it to probate.

Testatrix died February 14, 1958, leaving a will executed some two months before and which had been witnessed by three friends she had called to her home for that purpose. The sole beneficiary was decedent's cousin. The surrogate admitted the will to probate after the witnesses had executed affidavits in the usual form. Thereafter two nieces filed a complaint in the County Court, Probate Division, demanding that the executor and the sole beneficiary show cause why the judgment admitting the will to probate should not be set aside and the will declared invalid because it had been improperly executed. The complaint, as well as the supporting affidavit of one of the witnesses to the will, stated that the decedent had signed after the witnesses had affixed their signatures. An order to show cause issued and the matter came on for hearing before the County Court judge. We have before us his unreported opinion in which, after reviewing the testimony and the applicable legal principles, he concluded that the uncontradicted testimony of the three subscribing witnesses compelled a finding that the testatrix signed the will after they had done so; accordingly, the will had to be declared invalid and the probate set aside. He thereupon entered the judgment under review. It must be affirmed, essentially for the reasons set forth in the trial court's opinion.

The exact question before us was settled by the leading case of Lacey v. Dobbs, 63 N.J.Eq. 325, 50 A. 497, 55 L.R.A. 580 (E. & A.1901), which held that where the witnesses sign the will before the testator does it is invalid, even though all were present when each signed. Cf. In re Sutterlin's Will, 99 N.J.Eq. 363, 132 A. 115 (E. & A.1926), and James v. Wendehack, 1 N.J.Super. 203, 63 A.2d 710 (App.Div.1949), certification denied 1 N.J. 603 (1949), where it was said that

'The doctrine of Lacey v. Dobbs is so firmly embedded in our law of Wills that to question it, in the language of Mr. Justice Holmes, 'would be to lay hands on the Ark of the Covenant' (Springer v. Government of Philippine Islands, 277 U.S. 189, 211 (48 S.Ct. 480, 72 L.Ed. 845)). It imposes the fixed and certain rule that everything required to be done by the testator must precede the subscription of the testamentary witnesses; if the rule is not complied with the will is invalid and the mere fact that the testator subsequently acknowledged it as his will has no legal significance. * * *' (1 N.J.Super., at pages 205--206, 63 A.2d at page 711.)

See 5 N.J.Practice (Clapp, Wills and Administration), § 32, p. 87, § 36, p. 91 (1950). But see, 1 Page on Wills (3d ed. 1941), § 372, p. 672 et seq., strongly criticizing the Lacey doctrine and arguing that if the execution is completed at one entire transaction, the testator and the witnesses all being present, a will should not be rendered invalid because one or more of the witnesses signed before the testator;...