Smith v. Runkle

• Citation: 97 A. 296
• Parties: SMITH et al. v. RUNKLE.
• Decision Date: 19 October 1915
• Court: New Jersey Supreme Court

97 A. 296

SMITH et al.

v. RUNKLE.

Prerogative Court of New Jersey.

Oct. 19, 1915.

Appeal from Orphans' Court, Essex County.

Application by William E. R. Smith, as executor, for probate of writings as the last will, testament, and codicil of William Runkle, deceased, in which a caveat was filed by Harry G. Runkle. Part of will, with codicil, admitted to probate, and said Runkle appeals. Affirmed.

The following is the opinion of Martin, J., in the orphans' court:

William Runkle, late of Orange, died Saturday, the 31st day of January, 1914, possessed of a considerable estate. A paper writing bearing date of May 11, 1912, purporting to be his last will and testament, and a paper writing bearing date April 29, 1913, purporting to be a codicil thereto, were presented by proponent to the surrogate for probate. A caveat was filed by Harry G. Runkle, a brother of decedent, the nearest of kin surviving. The surrogate issued citations to all parties interested, and after a hearing the questions involved were submitted for determination.

The paper writings are in the handwriting of the decedent. They were in his custody immediately prior to his death, folded together and contained in a large unsealed envelope (with a list of securities), indorsed, "Last Will and Testament of William Runkle." The envelope is stained with dirt, and parts of the surfaces are rubbed off showing considerable wear.

The first paper writing, which will be designated as the will, is upon paper of legal cap size. The pages were not numbered, but, for the purpose of convenience, they have been numbered in pencil since the death of the decedent and before the handwriting and ink experts made the excellent and instructive photographs which are in evidence.

The will is substantially as follows: Pages 1 and 2:

"In the name of God, Amen, I, William Runkle widower, of * * * Orange * * * do make, publish and declare this my last will and testament in the manner and form following": (1) Directs payment of debts and funeral expenses and (2) burial at Asbury in the family plot; (3) devises a residence on Center street and all household and domestic articles to Wm. H. Hulick, except such articles as Kathryn Tully may choose: (4) bequeaths to Jesse Godley $25,000; (5) Elnora Godley, $10,000; (6) Alfred J. Gerard, $10,000.

At this point there is a line on the paper not written upon.

"7. I give and bequeath to my friend William H. Hulick of the City of New York the sum of Fifty Thousand ($50,000)."

This completes page 2 on the back of and at the end of first half sheet. Pages 3 to 12, inclusive:

At the top of page 3 is a repetition of the amount "(50,000)," without a new paragraph or sentence:

"($50,000), but in case he shall die in my lifetime then I give and bequeath the same to his child or children who shall be living at my decease in equal parts." (S) Bequeaths to Frank W. Campbell $25,000. "(9) I give and bequeath to my friend Charles I. Scholfield of the City of New York the sum of Twenty-five Thousand Dollars ($25,000)." "Canceled October 5th, 1912, Wm. Runkle." (10) Bequeaths to Carrie R. Scholfield $25,000; (11) Edith J. Adams $100,000; (12) Camilla Hill $10,000; (13) John W. Hulsizer $15,000; (14) Samuel A. Bristol $50,000; (15) Kathryn Tully $50,000, and any articles and paintings in the house in Orange which she may select; (16) Delia Fanning $5,000, Dietrich Kindsgrab $5,000, Maurice Lynch $5,000, Bridget Gavin $5,000, Margaret G. Hanley $5,000, Bartley Sherlock $2,000, William Sauer $1,000, Mrs. Kate Shanlev $1,000; (17) Lafayette College $100,000; (18) Orange Orphan Society $25,000, Orange Free Library $25,000, St. Mary's Hospital $25,000, Orange Memorial Hospital $10,000, Children's Aid & Protective Society $10,000, Orthopædic Hospital $10,000; (19) Board of Home Missions of Presbyterian Church $25,000; (20) Presbyterian Board of Relief $50,000; (21) College Board of Presbyterian Church $25,000; (22) American Sunday School Union $25,000; (23) Fidelity Trust Company $10,000 in trust for Board of Trustees of Presbyterian Church of Asbury, Warren County; (24) Fidelity Trust Company, in trust $750,000, to pay one-third of income to Harry G. Runkle (caveator) for life, one-third to a nephew, Daniel Runkle, and one-third to a niece, Mary G. Runkle, and provides for income to be paid representatives in event of decease of such legatee; (25) Fidelity Trust Company $30,000, in trust for Elizabeth Haines; (26) Fidelity Trust Company $10,000, for Presbyterian Church Cemetery at Asbury; (27) devises and bequeaths remainder to Harry G. Runkle, and releases him from all debts and directs that any obligation be released to Harry G. Runkle.

"28. I hereby nominate and appoint my friend William E. R. Smith, of East Orange, New Jersey, * * * sole executor. * * *"

"Wm. E. R, Smith to be executor."

Here follows permission to satisfy legacies in securities, at values fixed by executor, direction to pay inheritance taxes, and revocation of all former wills. In the margin opposite the figure 28 is written "Wm. E. R. Smith to be executor." On page 11 the writing of "Wm. E. R. Smith" and "East" is blurred. They are written over a chemical erasure of the name "Randolph Rodman" and the word "South." The words at the beginning of paragraph 28 were originally.

"28. I hereby nominate and appoint my friend Randolph Rodman of South Orange, New Jersey * * * sole executor," etc.

The will is signed "Wm. Runkle" with a seal affixed, and the usual attestation clause signed by the witnesses is appended. The execution of the will was in accordance with the provisions of the statute.

The codicil is as follows: First Codicil:

"Made April 29th, 1913.

"I hereby give and bequeath to George McM. Godley of the City of New York the sum of Fifty Thousand dollars; and to his brother Frederick A. Godley the sum of Twenty-five Thousand dollars.

"I also give and bequeath, if they are in my employ, at the time of my decease, to Nancy Shields the sum of $1,000 and to Catherine Byrnes and to John Gilleran the sum of Five Hundred dollars each."

"[Signed] Wm. Runkle." Witnesses:

"Chas. Hasler, 545 Springfield Ave., East Orange, N. J."

"John Burkhardt, Orange, N. J."

The proofs show due execution of the codicil, although no attestation clause is appended.

The first and second pages of the will are written on the front and back of one-half sheet of legal cap, and the third and fourth pages are on the front and back of another half sheet. These two half sheets are not physically connected with each other, except by the two clips hereafter described. The fifth, sixth, seventh, and eighth pases are written on the front and back of a full sheet of legal cap; the ninth, tenth, eleventh, and twelfth pages are written on the front and back of a second full sheet of legal cap, and the codicil is upon a sheet of legal cap, the writing covering about three-fourths of the first page which constitutes the thirteenth page of the testamentary contents of the envelope. The remaining three pages of the sheet upon which the codicil is written are blank.

The second half sheet of the will pages 3 and 4, and the other two full sheets, pages 5 to 12, inclusive, are fastened together by a fastener known as a "Challenge" fastener. This half sheet and the two sheets are perforated by two round holes. The fasteners were inserted and crushed down at the front near the top of page 3. The edges are rough and indurated. It has been referred to as the "mushroom or eyelet" end of the fastener. The other' end at the back of the fasteners on page 12 is round and smooth. Under the spread or mushroom of the Challenge fasteners upon the face of page 3 are several small pieces of paper, indicating that the original half sheet forming the other half of the sheet upon which pages 3 and 4 are written was apparently originally fastened under the spread or mushroom of the Challenge fasteners and probably later torn off. The half sheet now offered for probate, upon which pages 1 and 2 are written, is not perforated by the Challenge fastener, and is merely attached to the other half sheet, the two sheets constituting the remainder of the will, and the sheet upon which the codicil is written, by means of two wire clips known as "Gem" clips placed over the top and holding the first half sheet at and in the front of, and the codicil at the back of, the half sheet and the two sheets constituting the body of the will. pases 3 to 12.

The watermark indicating the manufacturer and year of production of the paper on the first half sheet, pages 1 and 2, on the second half sheet, pages 3 and 4, and the remaining two sheets of the will, pages 5 to 12, inclusive, is "Old Berkshire Mills 1908," and on the last sheet, the codicil, pages 13, 14, 15, and 16, is "Old Berkshire Mills 1910." Both years are prior to the dates of execution of both instruments.

The fronts of the mushroom or eyelet of the fasteners upon page 3 have made marks by pressing against the bottom of page 2 which show through the paper on the front of page 1. This "pressure" mark on the first half sheet appears to be the result of long contact. There is no "pressure" mark at the back end of the fasteners on the codicil.

A partially perpendicular tear in the papers, about an inch in length at the top of first and second half sheets and the other two sheets constituting the will and codicil, was made while the paper writings were in the custody of testator. This tear is almost the same in the half sheets and in the two whole sheets, but slightly less in the codicil, and was not made recently. No doubt the force that caused the tear in the sheets of the will was sufficient to tear the sheet upon which the codicil is written. It may reasonably be inferred that they were done at the same time, and therefore the codicil was attached to the will at the time it was torn.

The folds in the first half sheet consist of a well worn horizontal fold across the middle of...