In Re Davis' Estate. Heise v. Earle

• Citation: 35 A.2d 880
• Decision Date: 01 February 1944
• Docket Number: No. 201.,201.
• Parties: In re DAVIS' ESTATE. HEISE et al. v. EARLE et al.
• Court: United States State Supreme Court (New Jersey)

35 A.2d 880

In re DAVIS' ESTATE.HEISE et al.

v.EARLE et al.

No. 201.

Court of Errors and Appeals of New Jersey.

Feb. 1, 1944.

Appeal from Prerogative Court.

Proceeding in the matter of the estate of Mary Elizabeth Davis, deceased. From a decree of the Orphans' Court, 18 N.J.Misc. 655, 15 A.2d 895, setting aside the probate of purported will, an appeal was taken by Anna P. Earle and others, and from a decree of the Prerogative Court, 132 N.J.Eq. 282, 28 A.2d 72, reversing the decree of the Orphans' Court, Helen F. Heise and another appeal.

Decree of Prerogative Court reversed, and decree of Orphans' Court reinstated.

See, also, 130 N.J.Eq. 167, 21 A.2d 689.

DONGES, J., dissenting.

William Henig, of Hackensack, and Donald M. Waesche, of Teaneck (Robert O. Bentley, Jr., of Hackensack, of counsel), for appellants.

Nathan N. Schidkraut, of Trenton, for respondents Anna P. Earle and William Z. Earle.

Stanton T. Lawrence, of Rutherford, for respondent Rutherford Trust Co.

BROGAN, Chief Justice.

This appeal is from a decree of the Prerogative Court, 132 N.J.Eq. 282, 28 A.2d 72, granting probate to a certain will dated Nov. 21, 1932, made by the decedent, Mary Elizabeth Davis. The decree under review reversed a decree of the Bergen County Orphans' Court, 15 A.2d 895, 18 N.J.Misc. 655, which denied probate to the will. The instrument in question devised and bequeathed the entire estate to William Z. Earle, a nephew, and Anna, his wife, and appointed the Rutherford Trust Company executor. The will, upon execution, was lodged with that Trust Company where it remained until after the death of the testatrix. Later the testatrix made two other wills, one on Jan. 8, 1934, which designated Helen F. Heise, a niece, as sole beneficiary and nominated the Hackensack Trust Company executor. This will was left in the custody of the Hackensack Trust Company until April 5, 1935, when it was delivered to Mrs. Heise on the written order of the testatrix. It was used as a model to prepare the third will and was virtually a reproduction of it save that the niece, Mrs. Heise, was appointed executrix instead of the executor which had been nominated in the second will. Counsel who prepared the third will testified that it contained a clause ‘revoking all previous wills, codicils or other testamentary dispositions at any time theretofore made.’ And this is not disputed. Upon the execution of the third will some time in April, 1935, counsel who prepared it gave it over to the testatrix in an envelope which he sealed, together with the second will. He instructed her to destroy the second will. The testatrix at this juncture asked counsel, Donald M. Waesche, if he was ‘sure the new will revoked all previous wills' and he advised her that it did. The third will was retained by the testatrix personally and placed with other papers and valuable records, such as stock certificates, tax receipts and the like, in a metal box which the testatrix kept in her bedroom under a dresser. She and her niece, Mrs. Heise, had access to this box. After the death of Mrs. Davis on Oct. 13, 1936, the third will could not be found. Mrs. Heise, executrix and beneficiary, attempted to establish the instrument last made as a lost will. Her effort was unsuccessful. Cf. In re Davis' Will, 127 N.J.Eq. 55, 11 A.2d 233. This court held that under the circumstances, the will having last been seen in the custody of the testatrix and retained by her in a receptacle to which she had full and continuous access, the fact that it could not be found after her death raised a presumption of fact that the testatrix had destroyed the instrument, animo revocandi, and that the evidence offered to rebut that fact presumption was not of the clear, satisfactory and convincing character which was indispensable to establish the missing instrument as a lost will.

Meanwhile, on the eleventh day after the death of the testatrix the Rutherford Trust Company offered the first will for probate and it was admitted by the Surrogate. On appeal, Judge Weber, in the Orphans Court, reversed the order of the Surrogate and held that when the third will, revoking all previous wills was executed, the first will was annulled and that when the testatrix destroyed the last will, as presumably she did, it was not her intention to revive the will first made although it was still in existence. On appeal, the Prerogative Court reversed the Orphans' Court and reinstated the order of the Surrogate admitting the said will to probate. The learned Vice-Ordinary held that since the last will was itself revoked, the revocation thereof annulled the instrument in all its parts; that the revoking clause, being ambulatory and testamentary in character, never had any effect upon the first will and that the first will was therefore unimpaired, relying on Randall v. Beatty (a Prerogative Court case), 31 N.J.Eq. 643, 646.

Before considering the meritorious issue, the appellants have raised a question on the adjective side which should first have attention. The contention is that the Prerogative Court was without jurisdiction to entertain the appeal from the decree of the Orphans' Court ‘respecting the probate of a will’ because it was not taken within thirty days, the period prescribed by the statute, R.S. 2:31-93 and 94, N.J.S.A. It appears that the decree of the Bergen County Orphans' Court was filed on Jan. 13, 1941, and that the notice of appeal by Anna P. Earle et als. to the Prerogative Court was not filed until Feb. 14, 1941. Mrs. Heise therefore moved to dismiss the appeal in the Prerogative Court. The Vice-Ordinary overruled the motion. It serves no useful purpose to narrate the facts and circumstances of the misadventure that entitled counsel for Mrs. Earle to relief from a rigid enforcement of the rule. The court's order denying the motion to dismiss was wise and equitable and well within the limitations stated by this court in the case of In re Casey's Estate 127 N.J.Eq. 101, 11 A.2d 38, where a lucid exposition of the powers of the Prerogative Court to grant the relief allowed in this instance may be found. There is therefore no merit to the first point made by the appellants.

On the main question it is argued by the appellants that the 1932 will is not the decedent's last will and testament; that it had been conclusively revoked by the 1935 will; that having been revoked it had not been revived.

[2] The argument to support the proposition that the first will was revoked completely and never revived is rested on Sec. 2 of our statute on Wills, C.S. p. 5861, Rev. 1877, p. 1243, and Sec. 25, C.S. p. 5870 Rev.1877, p. 1248, a Supp. 1851, p. 218, Sec. 2. The testatrix in this case died on Oct. 13, 1936, hence the law as it was then written is controlling. Our revision of 1937 had not been enacted. The statute first referred to, i.e., Sec. 2 of our Wills Act, is closely patterned after the English Statute of Frauds, 29 Charles II, Ch. 3, Sec. 6 (Cf. Jarman 5th Am. Ed. p. 282). The supplement of 1851 (Cf. P.L.1851, p. 218) seems to be patterned in part after Sec. XX of the English Statute 1 Victoria 26 (1837). Those sections read thus:

‘2. That no devise or bequest in writing, of any lands, tenements, hereditaments or other estates whatsoever in this state, or of any estate pur auther vie, or any clause thereof, shall be revocable, otherwise than by some other will or codicil in writing, or other writing declaring the same, or by burning, canceling, tearing or obliterating the same by the testator himself or in his presence, and by his direction and consent; but all devises and bequests of any lands, tenements, hereditaments, or other estates whatsoever in this state, or of any estate pur auther vie, shall remain and continue in force until the same be burnt, canceled, torn or obliterated by the testator or by his directions in manner aforesaid, or unless the same be revoked or altered by some other will or codicil in writing, or other writing of the devisor signed in the presence of three or more subscribing witnesses declaring such revocation or alteration. (Rev.1877, p. 1243).’

‘25. Sec. 2. That all written revocations of wills shall be executed in the same manner as wills are hereby required to be executed, and when so made shall be sufficient to revoke any last will, or any part thereof. (Rev.1877, p. 1248.)’

The second section, supra, prescribed the statute formula for revocation of devises and provided that three or more witnesses be present. By the supplement of 1851, Sec. I, provision was made for the effective execution of a will before two witnesses and in Sec. II of the supplement, that written revocations of wills shall be executed in the same manner that wills are required to be executed.

It is urged by the appellants that the words in the 25th section of our Wills Act (Sec. II of the Sup. supra) referring to revocations, ‘when so made shall be sufficient to revoke any last will * * *’ mean that the Legislature ordained that simultaneously with the execution of a revocation, the prior will was completely annulled. We cannot accept this construction. We think that the words ‘when so made’ were intended to indicate, not time, but manner. It is true that the adverb ‘when’ is generally intended as synonymous with ‘at the time that’, etc., and usually regarded as a correlative of the word ‘then.’ But in the text of the Supplement (See Sec. 1, P.L.1851, C.S. 5867, Sec. 24) the burden of the statutory direction is concerned with the manner of executing wills. The idea of ‘manner’ is likewise intended by the succeeding section of the supplement and to attribute to the words ‘when so made * * *’ the significance of time is to import a meaning to these words at variance with the context of the statute. Just as the second section of our Statute on Wills, supra, followed the sixth section of the English Statute of Frauds, so the Victorian Statute, supra, had its effect on the subsequent statute...