In Re Winter's Estate.

• Decision Date: 16 May 1946
• Citation: 47 A.2d 545
• Parties: In re WINTER'S ESTATE.
• Court: New Jersey County Court

47 A.2d 545

In re WINTER'S ESTATE.

Orphans' Court of New Jersey, Union County.

May 16, 1946.

In the matter of the estate of Herman Blanchard Winter, deceased. On a petition for probate of deceased's will.

Will admitted to probate.

See also 47 A.2d 548. G. Bartram Woodruff, of Elizabeth, for proponents of will.

Richard G. Moser, of New York City, for Young Women's Christian Association.

Hopkins, Vorburger & Dickson, of Hoboken, for Presbyterian Hospital in the City of New York.

Raymond T. Parrot, of Elizabeth, for Eleanor Lee Winter.

EDWARD A. McGRATH, Judge.

Herman Blanchard Winter formerly lived in Plainfield, New Jersey, Union County, and while a resident of this state he executed a will dated January 11, 1926, in due form to pass title to real estate situate in this state. At the time of the execution of the will, he was unmarried, but later he married Eleanor Lee Winter. He went to Arizona and died there on December 7, 1944, while he was domiciled in that state. His widow is also of that state and his mother is a resident of this county. He had no children, brothers or sisters. This New Jersey will has not been admitted to probate, as yet, and no proceedings to probate are pending in Arizona. The relevant facts in this case have been admitted by stipulation.

There is nothing wrong with the New Jersey will considered as a will under the laws of this state and if the testator had been a resident of this state at the time of his death, there would be no vice in the will itself to prevent probate.

However, on November 18, 1934, the testator made a holographic will in which he attempted to dispose of all his estate, real and personal. This instrument also recited: ‘I hereby revoke all wills and testamentary instruments by me at any time heretofore made.’ This Arizona instrument was not witnessed, but being holographic was duly executed under the laws of Arizona and has been admitted to probate in that state. It is not executed according to our laws. There is a statute in Arizona affecting wills of married persons.

In 1921, the legislature of New Jersey passed an act permitting the probate of wills of non-residents on certain conditions. One condition is that the non-resident shall die ‘seized of real estate situate in this state leaving a last will and testament executed in due form to pass title to real estate situate in this state.’ R.S. 3:2-41 to 3:2-43 inclusive, N.J.S.A.

Two questions, therefore, arise. First: Have the Arizona will or Arizona Statutes any effect on the previous testamentary disposition of real estate in New Jersey under the New Jersey will? Second: If the New Jersey will has not been revoked, does it come within the provisions of the above New Jersey Statute permitting probate of wills of non-residents? It is admitted that the testator died seized of real estate in Union County at the time of his death.

It is true that a later inconsistent will revokes a former will, but the later will must be executed according to our statutes on revocation, therefore, the attempted revocation in the Arizona will, either implied or express, cannot affect New Jersey real estate. Boylan v. Meeker, 28 N.J.L. 274; Nelson v. Potter, 50 N.J.L. 324, 15 A. 375; Lindley v. O'Reilly, 50 N.J.L. 636, 15 A. 379, 1 L.R.A. 79, 7 Am.St.Rep. 802; Watkins v. Watkins, 82 N.J.Eq. 483, 89 A. 253, affirmed 85 N.J.Eq. 217, 95 A. 1079. The inconsistency must be a legal inconsistency and the attempted revocation in Arizona is a legal nullity as to New Jersey real estate.

There is no principle of interstate comity which can affect the disposition of New Jersey real estate, either by wills not according to our laws (In re Fischer, 119 N.J.Eq. 217, 181 A. 875), or by foreign statutes. Lindley v. O'Reilly, 50 N.J.L. 636, 15 A. 379, 1 L.R.A. 79, 7 Am.St.Rep.802. ‘A devise of land in New Jersey under a will of a nonresident must be determined by the laws of New Jersey.’ Van Wickle v. Van Wickle, 59 N.J.Eq. 317, 44 A.877.

Since the New Jersey will is the only legal will affecting real estate in this state, and is unrevoked as such, it follows that it is the only last will of real estate which this state will recognize and thus is within the terms of the statute.

No reason appears why the New Jersey will should not be probated here. The observations of the court in the Chadwick's Will Case, 80 N.J.Eq. 471, 85 A. 266 are not in point, since the Statute which was passed after these observations were made has now laid down the policy of this state on the subject. In re Fischer's Will, 119 N.J.Eq. 217, 181 A. 875. This policy creates no injustice or conflict of law as to real estate since each state has control...