In Re Lent.

• Decision Date: 13 May 1948
• Docket Number: No. 218.,218.
• Citation: 59 A.2d 7
• Parties: In re LENT.
• Court: New Jersey Supreme Court

59 A.2d 7

In re LENT.

No. 218.

Court of Errors and Appeals of New Jersey.

May 13, 1948.

Appeal from Prerogative Court.

Proceeding in the matter of Ella M. Lent, deceased, upon objections to probate of decedent's will. From a decree of the prerogative court dismissing their appeal from an adverse decree of the orphans' court, decedent's next of kin appeal and a motion is made to dismiss their appeal.

Motion to dismiss denied, decree reversed and cause remanded.

Syllabus by the Court.

The next of kin of a decedent have a standing to object to the probate of her will dispite the fact that there is an existence a will of earlier date by the terms of which they take nothing, since the validity of the earlier will cannot be challenged on the attempted probate of the later one but only if and when it is offered for probate.

Brogan, Hague & Malone, of Jersey City, and Louise Ruth Shapiro and William V. Azzoli, both of Newark, for appellants.

Joyce & Brown, of Bloomfield, for respondent.

DONGES, Justice.

This is an appeal from a decree of the Prerogative Court dismissing appellants' appeal from a decree of the Essex County Orphans' Court on the ground that they had no right to appeal because they were not persons aggrieved by the decree appealed from.

The appellants are the next of kin of Ella M. Lent who died on August 13th, 1946, at the age of 87. There was offered for probate a will executed one month before her death by which she divided her estate in three parts, two parts going to charitable institutions and the third to Mary McNulty, the respondent, who was named executrix. Mary McNulty was not related to testatrix. Appellants filed a caveat and the matter was referred to a master who took testimony on the issues of undue influence and testamentary capacity. He reached the conclusion that appellants had not made out their case and that the will should be admitted to probate. Apparently the standing of the appellants to file the caveat and attack the will was not raised in the Orphans' Court.

There was found among the effects of the testatrix and introduced in evidence a prior will, dated March 10th, 1927, by the terms of which the entire estate of the testatrix was given to various charities. The Vice Ordinary concluded that, if the will of 1946 were declared invalid, the will of 1927 would be effective and, since appellants took nothing by the 1927 will, they had no standing to attack the 1946 will as they would not benefit by a decree invalidating that will. Upon intimation that the 1927 will might also be the subject of attack, the suggestion was made that appellants be given an opportunity of presenting evidence on that subject. Appellants indicated they desired to do so but upon the day fixed they presented no proofs. Thereupon their appeal was dismissed.

The question for determination upon this appeal is whether or not the appellants are parties aggrieved so as to give them the right to...