In Re Rein's Will.
| Decision Date | 02 December 1946 |
| Parties | In re REIN'S WILL. |
| Court | New Jersey Prerogative Court |
Proceeding in the matter of the probate of the alleged will of Joseph L. Rein, Jr., deceased, wherein Rose Livingston, as executrix, petitioned for probate of the will, wherein Rebecka Livingston consented to probate, and wherein Charles Rein and Julius Rein filed objections to probate.
Will admitted to probate.
Syllabus by the Court.
1. The law's requirement of mental capacity to make a will is limited to the testator's knowing (1) what property he wishes to dispose of, (2) the natural objects of his bounty, (3) the nature of the testamentary act about to be performed, and (4) the distribution resulting from that act.
2. Absent-mindedness, occasional forgetfulness, asking idle questions and the like conduct to not by themselves indicate a lack of testamentary capacity. Particularly is this so where, as here, the testator was intellectually alert, interested in current events, habitual reader of the daily press, interesting conversationalist and a frequent traveler, unattended, between Newark and Philadelphia.
3. Proofs examined and found to show that near asphyxiation of testator by illuminating gas seven and a half months after making of will was an accident and not an attempt at suicide.
4. It is an established rule that suicide or attempt thereat does not of itself indicate insanity and does not permit any presumption of a fixed or lasting mental aberration. Nor can the act or attempt have reference to antecedent or subsequent periods of time.
5. Insanity, where shown to exist, is presumed to continue until restoration of mental health is shown. That presumption does not operate retroactively to affect an earlier testamentary act.
6. Where the will is merely typed by the beneficiary, following a model furnished by the testator, such participation raises no presumption of undue influence. Undue influence must be established by circumstances and conditions other than the mere drafting of the will and being the beneficiary thereunder.
7. The facts memorialized by the attesting witnesses in their attestation clause may not be impeached or contradicted by any such witness except upon the clearest and most convincing proof. All doubts must be resolved in favor of the truth of the facts so attested.
8. Evidence examined and found to furnish no support to the objections to probate. Held that will is entitled to probate.
Ruback & Albach and Meyer E. Ruback, both of Newark, for proponent.
Charles Handler, of Newark, for objector Charles Rein.
Emil R. Mintz, of Newark, for objector Julius Rein.
STEIN, Vice Ordinary.
This is a contest over the will of Joseph L. Rein, Jr., who died on November 22, 1943. The testator was a bachelor and left him surviving as his sole next of kin and heirs at law his sister, Rebecka Livingston of Philadelphia, and his two brothers, Charles, residing in New Jersey, and Julius, residing in California. Rose Livingston, the person named in the will under attack as sole executrix thereof and beneficiary thereunder, petitioned this Court for the probate of that will. Upon service of this Court's order to show cause, the sister Rebecka entered her appearance herein and consented to the probate of the proffered will. The two brothers, Charles and Julius, filed their objections to probate, alleging the following: (1) Mental incompetency; (2) that the will was the result of duress; (3) that the will was the product of undue influence and fraud. The objector Charles Rein made the further claim that the signature on the will ‘is not the genuine signature of the testator.’
The objectors offered no proof of any of their objections other than the one relating to mental incapacity. The case is barren of any proof supporting the claims that the will was the result of duress, fraud or undue influence, or the additional claim that the signature on the offered will is not the genuine signature of the testator. These unsupported objections had been advanced without the slightest reasonable ground or probable cause therefor. When the cause was concluded it had been established that the general form of the will had been prepared for the testator by Mr. Walter B. Gibbons, an eminent member of the Pennsylvania Bar, he being the testator's own selection. Mr. Gibbons testified that the testator told him that he wanted to leave his property either to his sister, Mrs. Livingston, or to her daughter Rose, that he felt that his sister was being cared for principally by the daughter Rose and that there was a doubt in his mind as to whether he wished to leave it to Rebecka or to the daughter Rose. Mr. Gibbons told the testator that he would draft a will and that he, the testator, could reach his final decision after he looked over the draft. Such draft was prepared by Mr. Gibbons and delivered to the testator a few days later. At these conferences between the testator and Gibbons no third party was present. About a week later the testator told his niece, Rose Livingston, for the draft prepared for him by Mr. Gibbons and he handed it to her. In that form of will the testator's estate was left to his sister Rebecka. He told Rose to type up a copy of the will with two changes, namely: (1) Where the will recited that he, Joseph L. Rein, was of the City of Philadelphia to change the residence to Newark, New Jersey, and (2) to put her own name in the place of her mother's name (Rebecka). The reason assigned by the testator for the second change was that he had considered the matter carefully, that he regarded his sister Rebecka as very liberal with money, that if he left it to her she would very likely spend it or give it to such of her children as asked for it, whereas if he left it to the daughter Rose, who had always taken care of Rebecka, he was confident that she would continue to do so for the rest of Rebecka's life. The will wanted by the testator was typed for him by his niece and, except for the two changes mentioned, was a copy of the form submitted to the testator by Mr. Gibbons. The will was typed by Rose in the late evening of August 14, 1939, and by the time it was finished it was past midnight. She therefore dated it August 15, 1939, and handed it to the testator, who folded it together with the Gibbons' form of will (which had been the model) and put both in his pocket. By the newly typed will he left his entire estate to Rose and appointed her executrix. The will was executed the following evening at Philadelphia and its due execution was proved by two of the three attesting witnesses Mayer Feldman and Natalie F. Rosenfeld. Rose Livingston was not present when the will was signed, arriving home about an hour later.
When the objectors went forward with their proofs a strange development occurred. They called as a witness the third attesting witness, Dora Oberlin. She admitted being present at the place and time of execution of the will, testified to by the other two attesting witnesses, but she denied the presence of those other witnesses, recalling no will and questioned her own signature on the will. She admitted that it was her genuine signature but insisted that she had not placed it there and could not recall the details relating to the execution of the will. It was very plain to me that this witness was evasive and untruthful, not daring, however, to go the length of denying the genuineness of her attesting signature. I intended to cite her in contempt for what clearly was a plain perjury and, in fact, took the first step in that direction. I ordered that she be produced before me at a future date, but upon the plea of objectors' counsel that she lived in Pittsburgh, was a person of small means and could ill afford the expense of coming east, and, what is more important, had intended no wilful deception, I permitted the matter to be dropped. I entertain no doubt that the two attesting witnesses, Mr. Feldman and his daugher Mrs. Rosenfeld, testified on the subject of the execution of the will with both truthfulness and precision. They also established the presence and signature of the third attesting witness, Dora Oberlin, who, although she admitted her signature, could not fancy how it got onto the will. Neither Mr. Feldman nor his daughter is in any way related to any of the parties in this contest. They were old friends of the testator and were requested by him to witness the will on the occasion of a family party given at the home of the testator's sister Rebecka.
Under our law only two witnesses are required to the execution of a will passing property in New Jersey. The will here was witnessed by three persons, all of whom signed the attestation clause, which is perfect in form and shows precise compliance with the requirements of our statute concerning the execution of wills. The situation would have been serious indeed if Dora Oberlin, the recanting witness, had been one of only two witnesses to the will. But even then her testimony would have had to fail in the face of the attestation clause and the clear and positive statement of the other attesting witness, both the clause and that testimony showing that the will was duly executed. The contradiction or impeachment of an attestation clause by one of the witnesses thereto is a grave matter and ought not be accepted except upon the clearest and most persuasive testimony. All doubts should be resolved in favor of the facts recited in the attestation clause, and this principally for the reason that the testator, the most important witness, is beyond recall. A somewhat similar situation arose in the case of Farley v. Farley, 50 N.J.Eq. 434, 26 A. 178, 180, where it was claimed that the testator had not signed the will in the presence of the subscribing witnesses, nor acknowledged his signature in their presence. The will had an attestation clause showing exact compliance with each of the statutory requirements and it expressly declared that both...
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