In re Gorrell's Estate

• Decision Date: 10 February 1941
• Citation: 19 N.J.Misc. 168,19 A.2d 334
• Parties: In re GORRELL'S ESTATE.
• Court: New Jersey Supreme Court

19 A.2d 334

19 N.J.Misc. 168

In re GORRELL'S ESTATE.

Orphans' Court of New Jersey. Essex County.

Feb. 10, 1941.

Proceeding in the matter of the estate of Adelaide Zella Gorrell, deceased, wherein an application was filed for the probate of a will.

Decree in accordance with opinion.

Meyer M. Semel, McCarter, English & Egner (James Ozias), Ralph W. Hyatt, and Lindabury, Depue & Faulks (Emory C. Risley), all of Newark, for proponents.

ALFRED C. CLAPP, Advisory Master.

This application for probate comes before the Orphans' Court because of doubts arising on the face of the holographic papers propounded. From the facts in the case five questions emerge.

The first question is whether the testatrix acknowledged the making of her signature. The attestation clause declares she signed the will in the presence of the witnesses. But in fact she did not; for when first she showed them the testamentary papers they saw her signature already thereon. The witnesses substantially agree that her words to them then were that she wanted them "to witness her will". Out of these words and the circumstances here present, there can be spelled an acknowledgment of the signature. It has been put forward by counsel that the words constituted a declaration that the will was hers. This is true enough, but a declaration, such as that, cannot be taken as the equivalent of an assertion that the component parts of the will—and hence the signature, which she doubtless knew to be an important element of the will—were hers, too. The statute, N.J.S.A. 3:2-1 et seq., requires an acknowledgment of both the will and the signature; and it is elementary that the latter cannot be dismissed as a superfluity. The English decisions since the Wills Act of 1837 (1 Vict. c. 26), under which no publication is required, have hence but a dubious force.

Nor do such words as "This is my will" become an acknowledgment of the signature thereon by virtue of the circumstance here present, that the witnesses saw the signature and well knew it to be hers, and the further circumstance that in all likelihood she had in mind that they recognized it as hers. Those circumstances will indeed serve to fill out a shorthand acknowledgment, but they cannot supply or excuse its omission. Nor can they break the one acknowledgment into the two required by the statute.

But, at least under such circumstances, the words of the testatrix asking the witnesses to sign as witnesses to her will do constitute an acknowledgment of her signature. The word "witness" signifies commonly to a layman a "person attesting genuineness of signature to document by adding his signature". Oxford Dictionary. Our statute uses the word similarly, requiring witnesses to the testator's execution of the will, that is, witnesses to his signature or acknowledgment thereof and to his declaration that the will is his. Lacey v. Dobbs, 63 N.J.Eq. 325, 50 A. 497, 55 L.R.A. 580, 92 Am.St. Rep. 667 (pointing out that some other statutes require witnesses to the will, not to its execution). The request by testatrix to certain persons to act as witnesses to her will constituted then in fact a request that they attest the genuineness of the signature to her will. It need not be decided whether her request of itself was impliedly an assertion that the signature was hers and in her own hand; it is enough to say that the request became plainly such an assertion, when coupled with the fact here that the witnesses saw her signature, and with the likelihood (I find present) that she knew they knew it as hers.

This result follows that of the most recent case in the Prerogative Court, In re Sutterlin's Will, 98 N.J.Eq. 307, 128 A. 624, affirmed on other grounds, 99 N.J.Eq. 363, 132 A. 115. The conflicting decisions of that court are pointed out in Farley v. Farley, 50 N.J.Eq. 434, 26 A. 178. See In re Manners' Estate, 72 N.J.Eq. 854, 66 A. 583; In re Elmer's Will, 32 N.J.L.J. 151; In re Laing, 17 N.J.L.J. 266; In re Buck, 31 N.J.L.J. 84.

On the second question of the case my opinion is that the first three of the six sheets here propounded as the will may not be admitted to probate. There is no testimonial evidence identifying these three sheets as being among those testatrix declared to be her will. The proof on the question of identification is solely circumstantial. At the time of the execution of the will she had the papers before her folded back, so that all the witnesses saw were the last two sheets which they signed. The argument of proponents is that where several loose sheets are found together in the testator's custody at his death (as these were found), then although the witnesses only observed the sheets they signed, the presumption is that all the sheets found together formed a part of the will at the time of execution. Gregory v. Queen's Proctor, 4 N.C. 620; Smith v. Runkle, N. J.Prerog., 97 A. 296, 303, affirmed on this part of the opinion, 86 N.J.Eq. 257, 98 A. 1086. The argument rejects the authority that "loose sheets not connected by their internal sense" with the sheets bearing the testator's signature are presumptively written after that signature. In re Maginn's Estate, 278 Pa. 89, 122 A. 264, 30 A. L.R. 418.

However, if there be the presumption argued for by proponents (and no opinion is expressed as to whether or not there is), it is here rebutted by both the text and the physical make-up of the six sheets propounded. In my view the last three sheets propounded, containing paragraphs 4th, 5th, 6th and 7th, with one or more other sheets containing paragraphs 1st, 2nd and 3rd of the will, were the sheets properly executed. Thereafter, becoming dissatisfied with the will, testatrix destroyed the sheet (or sheets) containing paragraphs 1st, 2nd and 3rd and made alterations in the remaining sheets of the will; and then or thereafter she set about, with these remaining sheets before her as a rough basis, to draw a new instrument, going so far as to draft the first three sheets now propounded which contain paragraphs "First", etc., through "Ninth". In so doing she changed much of the verbiage of the will she had executed, made possibly some additional gifts, but failed both to name an executor and to execute the new instrument.

A large number of circumstantial factors when taken together lead to the view I have expressed. They need not be detailed. The will then as executed consisted of the last three of the sheets here propounded and a prior sheet (or sheets) containing paragraphs 1st, 2nd and 3rd, that is now missing.

The third question of the case is whether testatrix revoked that missing sheet. Since the will was in her custody during her life, the presumption is that she destroyed the missing sheet with an intention to revoke it. This presumption is but a logical projection of well established principles applying where a will has been in a testator's custody in his lifetime. If that will cannot be found at his death it is presumed under these principles that he destroyed it animo revocandi; or if it is found, but with a portion of it cancelled, it is presumed that he cancelled that portion with like intent. In re Davis' Will, 127 N.J.Eq. 55, 11 A.2d 233; Hilyard v. Wood, 71 N.J.Eq. 214, 63 A. 7.

It may be that the testatrix destroyed the first sheet because she was going to make a new will. Under the extraordinary doctrine of dependent relative revocation, a revocation induced by a misapprehension that a new will would be executed, has been held in New Jersey to be of no effect. In re Frothingham's Will, 75 N.J.Eq. 205, 71 A. 695, reversed (on the point that the plan to make a new will in fact was conceived after the revocatory act was performed) In re Frothingham's Will, 76 N.J.Eq. 331, 74 A. 471. Cf. in general Smith v. Runkle, N.J.Prerog., 97 A. 296, reversed, Smith v. Haines, 86 N.J.Eq. 224, 98 A. 317; the dicta in the cases of In re Allen's Will, 88 N.J.Eq. 291, 102 A. 147, affirmed 89 N.J.Eq. 208, 103 A. 1051; and Smock v. Smock, 11 N.J.Eq. 156; and 33 Harvard Law Review 337. The presumption above stated, presuming testatrix's intention to revoke the first sheet, is therefore rebuttable by proof that her intention proceeded on the misapprehension stated.

However, it has been pointed out by the Court of Errors and Appeals that the doctrine of dependent relative revocation "from its inherent nature [is] too much exposed to fraud". In re Frothingham's Will, supra [76 N.J.Eq. 331, 74 A. 473]. Following the intimations of that case I hold that proof of the concurrence of the plan to make a new will with the intention to revoke must be strong in order to rebut the presumption of revocation. I use the words "strong proof" to express a standard of proof lying between the standard of a preponderance of proof usual in civil cases and the standard of proof beyond a reasonable doubt. Wigmore on Evidence (3rd Ed.), Sec. 2498; but Cf. In re Calef's Will, 109 N.J.Eq. 181, 156 A....