McDougal's Will, In re
| Decision Date | 03 April 1958 |
| Citation | 140 A.2d 249,49 N.J.Super. 485 |
| Parties | In the Matter of the Probate of the Alleged WILL of Elizabeth McDOUGAL (McDougall), also known as Bessie McDougal (McDougall), deceased. In the Matter of the ESTATE of Elizabeth McDOUGALL a/k/a Bessie McDougall. |
| Court | New Jersey County Court. New Jersey County Court — Probate Division |
Joseph J. Maraziti, Boonton, for Ezra McDougall (Aaron Dines, Hackensack, on the brief).
Paul Colvin, Dover, for Loretta Lenox, Robert McDougall, Thomas McDougall, Catherine Burd, Aloyius McDougall, Gerard McDougall, and Theresa Nixon.
William J. Tiernan, Newark, for Walter F. McDougall and Vincent McDougall (Tiernan & Strulowitz, Newark, attorneys).
Edward F. Broderick, Morristown, for Sacred Heart Church.
MINTZ, J.C.C.
Elizabeth McDougal (McDougall), also known as Bessie McDougall, died on May 23, 1957, a resident of Los Angeles, California. She had resided in the State of California continuously for about 19 years up to the time of her death. Prior thereto the decedent was a resident of Dover, New Jersey, the place of her birth. She had never married. Her surviving next of kin and heirs at law are a brother Ezra, and several nephews and nieces, children of her brothers Walter and Robert, who predeceased her.
During her domicile in New Jersey Elizabeth executed a will dated April 27, 1935. The will was prepared for her by a New Jersey attorney and purports to make disposition of all her real and personal property. There was also found among her effects a holographic will dated April 4, 1956, executed by Elizabeth in California. The holographic will in its entirety is as follows:
'April 4--1956
'I Elizabeth McDougall of the City of Los Angeles and State of California.
'Declare this to be my last will & testement.
'1st I order & direct my Executors to pay all my just debts and funeral expences as soon as convenient after my decase.
'2nd I am leaving my Brother Ezra McDougall One dollar for the reason he received his share from my fathers estate that was turned over to me. by my Brothers Robert & Walter now decase
'3rd I am leaving property at 11-E Munson Ave to be sold & divided equal to my Brothes children Robert & Walters.
'Elizabeth McDougall L.S.'
At the time of her death, decedent was the owner of the real property situated at 11 East Munson Avenue, Dover, New Jersey, the subject matter of the holographic will.
Her brother Ezra, a resident of Dover, was apprised of the April 4, 1956 document. He was unaware of the existence of the original April 27, 1935 will, having knowledge only of a Copy of said will. He filed a complaint in this court, challenging the validity of the 1956 instrument under the New Jersey law, there being no subscribing witnesses or any attestation. His complaint alleges that in addition to the Dover realty decedent left personal property in the State of New Jersey in the approximate amount of $2,500, and personal property in the State of California in the approximate amount of $670. He further alleges that said document may be valid in the State of California, but invalid to pass real estate situate in New Jersey. He demands judgment admitting said will to probate, that he be appointed administrator Cum testamento annexo, and that this court render a declaratory judgment setting forth the effect of this document upon the personal and real property of the decedent. No proceedings have been taken for the probate of the holographic will in California, and it has not been admitted to probate in that state.
Subsequent to the filing of Ezra's complaint, the original will of Elizabeth dated April 27, 1935 was discovered. In this will the testatrix appointed her brothers Walter and Robert (who predeceased her) as executors. Walter, a nephew of the testatrix and son of her deceased brother Walter, thereupon filed a complaint alleging that no proceedings for the probate of the said will are pending in the State of California, nor has said will been admitted to probate in that state. He demands judgment that said will be admitted to probate and that letters of administration Cum testamento annexo be granted to him. The formal New Jersey will purports to devise a life estate in the specific real property at Dover to her brother Walter, and the remainder to her nephews Walter and Vincent, the sons of her brother Walter (to the exclusion of her late brother, Robert's children).
The two proceedings were consolidated for hearing. At the oral argument, counsel agreed that the only real property left by the nonresident decedent in the State of New Jersey was the property at 11 East Munson Avenue, Dover.
Robert's children object to the probate of the 1935 will and contend that only the holographic instrument should be admitted to probate. The issue is whether the Dover property is devised pursuant to the formally executed New Jersey will in 1935, or does the property, or the proceeds from the sale thereof, pass in accordance with the 1956 California holographic will.
Robert's children concede the insufficiency of this document to effectively devise realty in New Jersey, but contend in brief that this instrument contains a direction to sell the property and divide the proceeds. As a result of this direction, they assert that the principle of equitable conversion applies, that is, the real property is deemed personalty and the instrument, being valid to pass personalty in the State of California, where decedent was domiciled, is likewise valid to pass personalty (the proceeds from the sale of the Dover property) in New Jersey.
The constitutional and statutory right of the County Court to render a declaratory judgment in the case Sub judice, adjudicating the interests, if any, that may vest under a will, is not challenged and finds support in our decisional law. Donnelly v. Ritzendollar, 14 N.J. 96, 101 A.2d 1 (1953); In re Koehler's Estate, 43 N.J.Super. 585, 129 A.2d 442 (App.Div.1957).
The 1956 holographic will was made by decedent while domiciled in California. Counsel agree that such a will is entirely valid under the law of that state. They also agree that the 1935 will, validly executed in New Jersey, was also executed in accordance with California law. Obviously the holographic will is ineffective to devise realty in New Jersey since it does not comply with N.J.S. 3A:3--2, N.J.S.A. which provides that:
'Except as provided in section 3A:3--5 of this title, a will to be valid shall be in writing and signed by the testator, which signature shall be made by the testator, or the making thereof acknowledged by him, and such writing declared to be his last will, in the presence of 2 witnesses present at the same time, who shall subscribe their names thereto, as witnesses, in the presence of the testator.'
The holographic instrument is likewise ineffective to revoke a prior vald devise, since the purported revocation was not executed in the same manner in which wills are required by law to be executed. N.J.S. 3A:3--3, N.J.S.A.
The fact that the holographic will may be legally sufficient in the State of California, the domicile of testatrix, does not render it legally sufficient to devise real property in New Jersey. Our courts have adhered to the majority rule which holds that as to a devise of land, the law of the situs of the land, and not the law of the domicile of the decedent, prevalis. In Nelson v. Potter, 50 N.J.L. 324, 15 A. 375, 376 (Sup.Ct.1888), the decedent Potter died in 1885, domiciled in California. His will purported to devise certain properties in New Jersey. It was executed in compliance with California law but not with New Jersey law. The court declared the California will to be invalid to pass real estate situate in New Jersey, and stated that:
See also Fidelity-Philadelphia Trust Co. v. Harloff, 133 N.J.Eq. 44, 60, 30 A.2d 57 (Ch.1943); Pratt v. Douglas, 38 N.J.Eq. 516, 533 (E. & A.1884).
It necessarily follows that the subsequent California will cannot revoke a prior valid New Jersey will dealing with real property. In re Winter's Estate, 24 N.J.Misc. 167, 47 A.2d 545, 547 (Orph.Ct.1946); Boylan v. Meeker, 28 N.J.L. 247 (Sup.Ct.1860).
A parallel situation to the case at bar was presented in the Winter case. There, the deceased while a resident of New Jersey executed a valid will devising realty in this State. He subseqently removed to Arizona, and while domiciled there executed a holographic will, in which he revoked all prior wills and attempted to dispose of all his real and personal property. The court held that:
'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 expressed, can not affect New Jersey real estate. * * *
'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 last will of real estate which this state will recognize and thus is within the terms of the statute.'
Robert's children urge that the holographic will does not purport...
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