In Re Jensen's Estate.

• Decision Date: 20 October 1947
• Citation: 56 A.2d 573
• Parties: In re JENSEN'S ESTATE.
• Court: New Jersey Prerogative Court

56 A.2d 573

In re JENSEN'S ESTATE.

Prerogative Court of New Jersey.

Oct. 20, 1947.

Proceeding in the matter of the estate of Lena Jensen, deceased, wherein a will executed in 1937 by Catherine Canning was offered for probate, and wherein Adolph Nelson filed a caveat and a petition for probate of missing will executed in 1944 by testatrix.

Will of 1937 admitted to probate and petition for probate of will of 1944 dismissed.

Syllabus by the Court.

1. Testatrix died January 6, 1947. She had executed a will November 30, 1937, and another will on October 20, 1944. After the death of testatrix the will of November 30, 1937, was offered for probate. Testatrix's brother filed a caveat against the probate of this will and a petition for the probate of the will of October 20, 1944. The will of 1944 had been left in the possession of the testatrix, the scribener retaining an unsigned copy thereof at his office. Upon the death of the testatrix, after diligent search, the only will found was the will of 1937.

2. It is the settled law of this State that where as here the will was left in the custody of the testatrix or she had access to it, the fact that it cannot be found after her death raises the presumption that she destroyed it animo revocandi. This presumption may be rebutted but in order so to do the evidence must be clear, satisfactory and convincing and the burden is on the proponent. The proof necessary to rebut the presumption of revocation must be sufficient to exclude every possibility of a destruction of the will by the testatrix herself.

Theodore Schwartz, of Hoboken (William A. Kaufmann, of Hoboken, of counsel), for proponent.

Walter P. Reilly, of Newark, for caveator.

STEIN, Vice Ordinary.

Lena Jensen died at Newark on January 6, 1947. She had executed a will November 30, 1937, and another will on October 20, 1944. George R. Sommer, a member of the Bar, drew both wills. In the will of November 30, 1937, Catherine Canning was named as executrix, while Mr. Sommer was named as executor in the will of October 20, 1944. After the death of the testatrix the will of 1937 was offered for probate and Adolph Nelson, a brother of decedent, filed a caveat and a petition for the probate of the will of October 20, 1944. The proper execution of the will of 1937 was at no time in question; the contest surrounded the will of 1944.

The will of 1944 after it was executed was left in the possession of the testatrix, Mr. Sommer retaining an unsigned copy thereof at his office. When the testatrix died diligent search was made for a will but the only will found was the will of 1937. When Mr. Sommer drew the will of 1944 he says that the testatrix told him that she had changed her mind and wanted to leave everything to her brother Adolph. He saw the testatrix again in 1946 when she was in the Lutheran Memorial Hospital and on that occasion he says that testatrix told him that she did not think she would live very long and wanted to be sure that the will she made left everything to her brother Adolph; that the testatrix had a safe deposit box in the Fidelity Union Trust Company in which she kept most of her things but that he subsequently found that she kept very little there and that most everything was kept by her in her home. The witness says Mrs. Canning, the executrix and beneficiary under the will of 1937, was not related to the testatrix, that she was general manager for Lena Jensen in the conduct of a number of rooming houses in Newark and that when he drew the will of 1937 in favor of Mrs. Canning she was thus favored to compensate her for her services to the testatrix; that the relationship between them was very close and that testatrix had implicit trust and confidence in Mrs. Canning.

After the death of testatrix Mr. Sommer visited Mrs. Canning who was then in Jersey City. He told her that there was a will in 1937 under which she was the executrix and that there was a bequest to her, but that another will had been made in 1944 and that that will had not been found; that Mr. Nelson had found in Mrs. Jensen's effects the 1937 will and Mr. Nelson would be perfectly willing to have the 1937 will probated and compensate her, if she would release the bequest to her. The witness says he opened the safe deposit box in the Fidelity Union Trust Company but there was no will there. He instructed Mr. Nelson and Mr. Lysac, the latter an employee of Mrs. Jensen in her lifetime, to search through all her effects for the will but the only will found was the 1937 will.

Between Christmas and New Years of 1946-1947 Mr. Sweeney testified ‘Well, she (testatrix) always had told me, at all times,...