In re Bryan's Will, 238.

• Decision Date: 21 April 1939
• Docket Number: No. 238.,238.
• Citation: 125 N.J.Eq. 471,5 A.2d 774
• Parties: In re BRYAN'S WILL.
• Court: New Jersey Supreme Court

5 A.2d 774

125 N.J.Eq. 471

In re BRYAN'S WILL.

No. 238.

Court of Errors and Appeals of New Jersey.

April 21, 1939.

Appeal from Prerogative Court.

In the matter of the probate of the alleged will of Matilda A. Bryan, deceased. From an order denying probate of a paper purporting to be a copy of the last will and testament of deceased, an appeal was taken.

Affirmed.

Thompson & Hanstein, of Atlantic City, for appellants.

Cole & Cole, of Atlantic City, for respondents.

WOLFSKEIL, Judge.

This appeal is from an order denying probate of a paper purporting to be a copy of the last will and testament of Matilda A. Bryan, deceased.

The issue is factual so that the present determination rests essentially upon a review of the testimony. The controversy centers about the testamentary disposition by Mrs. Bryan of her estate. She was a former actress, who later married, became possessed of considerable wealth and retained it in a substantial degree to her death. She executed one will on November 14th, 1934, in which her niece, Helen L. Boyle, was made executrix and chief beneficiary. She made another will on April 30th, 1937, in which the gift to the niece was greatly reduced and a Baltimore trust company was made executor. Proponents sought probate for an unsigned and undated copy of this later will in which they are named as beneficiaries. There was no dispute concerning validity in execution of the 1937 will, but the original was not produced, and no direct proof was advanced to show what happened to it after it was delivered by the lawyer-draftsman to Mrs. Bryan. This lawyer stated that when he inquired of Mrs. Bryan where it could be found in the event of her death she replied that it would be in her safe deposit box at Ventnor, New Jersey. It was not found, and there was no actual proof that anyone saw it after it was given to Mrs. Bryan.

From the evidence it appeared that Mrs. Bryan suffered a stroke in June, 1938, in her winter home in Florida. Mrs. Boyle was with her at the time and immediately took possession of a black bag that Mrs. Bryan used as a container for her papers and valuables and which she always had with her. Moved solely by a desire to protect her aunt Mrs. Boyle removed the bag from the bedroom, examined the contents and found therein a sealed envelope bearing the printed name of an attorney in Baltimore and the typewritten statement that it contained the last will and testament of Mrs. Bryan. After Mrs. Bryan's death the unopened envelope was forwarded to the attorney and found to contain the 1934 will.

The sole issue in this case is the determination of the question: "Did Mrs. Bryan destroy her 1937 will in her lifetime animo revocandi?"

Voluminous testimony of detailed incidents, conversations and acts was produced. It appeared indisputable that Mrs. Boyle was favored by the decedent and this was reflected in the 1934 will. Proponents of the 1937 will sought to show that the aunt subsequently disapproved of certain conduct attributed to the niece, stated she was greatly reducing the bequest to her and instead was distributing the bulk of her estate among the others to whom she made these statements. It is alleged that Mrs. Boyle was aware of this and naturally was interested to avert it. An attempt was made to show that the 1937 will was also in the black bag, accessible to the niece, and must have been destroyed by her since she...