In re Willitt's Estate

• Decision Date: 17 May 1900
• Citation: 46 A. 519
• Parties: In re WILLITT'S ESTATE.
• Court: New Jersey Supreme Court

46 A. 519

In re WILLITT'S ESTATE.

Prerogative Court of New Jersey.

May 17, 1900.

(Syllabus by the Court.)

In the matter of the estate of Theodore S. Willitt. Application to admit to probate a lost will. Denied.

Alan H. Strong, for proponent George S. Silzer, for respondent.

REED, Vice Ordinary.This is an application to admit to probate a lost will. Theodore S. Willitt died on April 19, 1899, leaving a daughter about 3 years old, and a widow pregnant with a child born on August 24, 1899. After his death no will was discovered. It is insisted, however, that he executed a will on February 3d, preceding his death, which will was lost or was destroyed by some one other than himself without his consent. This will, it is insisted, was drawn by his father, Theodore Willitt, and attested by the draftsman and by his wife, the mother of the alleged testator. It is insisted that this will was placed in a box in which the son kept certain of his papers, which box was returned to its place of deposit, in a bookcase in the house of his father; that the box was taken from the father's house to the rooms of his son about 10 days before his death, where it remained under his bed until his death; that it was taken thence after his death to the house of the widow's mother, and there opened; that thereafter all or a portion of the contents of that box were destroyed by the sister of the widow. Theodore Willitt, the father, lived in the Borough of South River, Middlesex county. Theodore S. Willitt, the son, lived in the same borough, apart from his father. He and his brother Charles kept a saloon, over which Theodore S. Willitt, with his wife and child, lived. The principal witness to the execution of the alleged will is the father. His account is that about 11 o'clock on the night of February 2d his son Theodore S. came to his father's house. He aroused his father and mother, who were then in bed, and told them that he had had a terrible fight with the women. He said: "Pa, I want you to get my will made at once. They are dosing me. Get it made at once." He says that his son remained at his house the rest of the night, and on the next afternoon the father drew the son's will, using as a form his own will. He says the will was attested by himself and his wife. This will, he says, left all the property of the testator to his brother Charles, and named Charles as executor. The will, he says, after its execution, was folded by the son, who placed a letter of instructions, directed to Charles, in it, and placed both in an envelope. He then went into the parlor, and took his private box out of the bookcase, and brought it into the room where the family was. He opened the box and put the will in it, and then renailed the box and put the cover on it, and returned the box to the bookcase. The box was covered with wrapping paper. This box remained there until 10 or 15 days previous to the death of his son. The box seems to have been within sight of the family; for Mrs. Willitt, the mother, says that she saw it frequently. About two weeks before his death, Theodore S. directed his brother Charles to bring the box from their father's house to the apartments of Theodore S. Charles carried it to the sick-room of the latter, and put it under his bed, where it remained until his death. Soon after his death the box was taken from the house by Laura Daly, the sister of the widow. Laura, who was sworn for the complainant, says that she arrived at the house about 10 minutes after the death of Theodore S. She says that the box was there, and that she took it from under the bed to her mother's house, and put it in the attic. Her desire to secure the box arose from the fact that there had been a liaison of some sort between her and the deceased, and she had written letters to him which compromised her, which letters she knew or suspected were kept within this box. She says that the box remained in the attic unopened, so far as she knows, until it was opened in the presence of her mother and her sister, the widow. After the funeral the widow consulted Mr. Deputy Surrogate Daly as to what should be done by her, and she mentioned to him the existence of this box, which she thought contained papers belonging to her husband. She was instructed to examine the contents of the box. The widow knew that Laura had taken the box, and, on the Tuesday following the funeral, she and Laura went to their mother's house, and Laura brought the box downstairs and opened it. The widow says that it was wrapped with common wrapping paper, and there were three tacks in each end of it. She thought that there was a piece of board across the top. In the box were arranged all the letters, and on the top of the letters, she says, was an envelope, with a paper extending about four inches out of the envelope. Laura, she says, handed this paper to her, and it proved to be a will of one Mrs. Sarah Jane Willitt. With it, in the envelope, were a number of checks that Mrs. Willitt had given to Theodore S., and which he had never cashed. Laura handed her the will and the checks, and nothing else. Laura kept the letters, put them in a stocking, and took them over to the house of Theodore Willitt, the father. Both sisters swear that there was no will of Theodore S. Willitt in the box when opened, and Laura swears that there was nothing in the box but letters which belonged to her. Laura says that she took the letters in the stocking to Theodore Willitt's house, there examined them, and then threw them in the stove. The letters seemed to have been read in the presence of Mrs. Willitt Mrs. Colwell, a daughter of Mrs. Willitt by a former husband, and her daughter, and then destroyed but none says that auy will was destroyed with them. The father and mother and sisters seem to have known of the former relations existing between Theodore S. and Laura,, and the father says he knew of the letters being in the box. This is a general outline of the testimony in respect to the execution of the will, its contents, and its disposition, if executed.

Two questions are presented: First, was a will, with the contents as sworn to, executed on February 3d? And, second, if so, was that will lost or destroyed by the act of any person other than Theodore S., without his consent?

In respect to the execution of this instrument, in addition to the testimony of Mr. Willitt, the father, Mrs. Willitt, the mother, testifies to the execution of the will, and its contents, and its deposit in the wooden box, and of the placing of the box in the bookcase, in substantially the same way as her husband. Both say that the will was read in the presence of their son before it was executed. Mrs. Colwell also testifies that she came there on February 3d, which was the birthday of her mother, and that she saw the execution of the will; that she heard its contents, and saw its deposit in the box,—in the same way as the others. Charles, the brother, also says that Theodore S. told him the day after he made the will, between 1 and 2 o'clock of February 3d, that he had made a will, and had put it in the box up at the house. The widow says that her husband did not leave the house on the night of February 2d. S...