Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

In re Probate of Will of John D''Agostino

Decided: December 9, 1949.

IN THE MATTER OF THE PROBATE OF THE WILL OF JOHN D'AGOSTINO, DECEASED


Rogers, J.s.c.

Rogers

John A. D'Agostino died July 21, 1948. He left a will dated March 9, 1928, which the principal beneficiaries offer for probate in this proceeding. The objection against probate of the instrument filed by his widow, Jeanette, is as follows:

"Said paper writing was prepared and drawn in two exact copies both of which were executed by said decedent as his last will and testament in the manner and form required by law. One of said copies was delivered to and retained by Guarantee Trust Company, the executor designated therein, and the other of said copies was kept and retained in the possession of the said testator. On or about April 19th, 1942, said Jeanette D'Agostino and said decedent were married. A short time after said marriage said decedent destroyed the copy of said will which had been retained by him as aforesaid and then in his possession, animo revocandi , and by that act all existing copies of said paper writing were revoked;"

At the hearing the due execution of the original will was proved and admitted as well, and respondent limited her attack upon probate to revocation as set out in the foregoing objection. Thus the basic issue is specific and clearly defined to be whether the will of John A. D'Agostino was executed in duplicate, or exact copies, and if so, did decedent destroy animo revocandi the copy he retained.

With the due execution of the original will established, the burden shifted to respondent to prove that the will was executed in duplicate and that the duplicate retained by testator was destroyed animo revocandi. If this proof convincingly establishes the due execution of the will in duplicate and revocation by testator's destruction of the executed copy retained by him, then the will offered is effectively revoked regardless of where it was kept or found. Cf. In re Lawrence , 138 N.J. Eq. 134 (Prerog. 1946).

The pertinent provision of our statute on the method of revocation of wills, R.S. 3:2-4, is:

"No written will or any devise or bequest therein, or any clause thereof, may be revoked except by: A. Burning, cancelling, tearing

or obliterating the same by the testator himself or in his presence by his direction and consent; or * * *."

Compliance with the provisions of this statute is essential for effective revocation. Heise v. Earle , 134 N.J. Eq. 393 (E. & A. 1944).

The witnesses to the will were Raymond R. Read and Carolyn A. Wright. Mr. Read did not survive the testator. Carolyn A. Wright Olson (nee Wright) testified to the execution of the will. She identified her signature to the attestation clause, and also Mr. Read's, and testified that the instrument was executed in accordance with the terms of the attestation clause. She further testified that Mr. Read was trust officer of Guarantee Trust Company (now defunct) the executor named in the will; and that she was employed by that bank and its successor, Guarantee Bank and Trust Company, from 1923 to 1945 in the trust departments as secretary to Vice-President Sypherd. She knew who Mr. D'Agostino was, but she did not remember the will transaction at all, nor was her memory of it refreshed in any respect by counsel's most searching examinations. The witness had no recollection that this will was executed in duplicate nor that she had ever attended upon execution of any will in duplicate. It appeared that she had typed many wills in the trust department and attended upon the execution of several hundred. Neither the body of the will, nor the attestation clause contain any reference to its execution in duplicate, and no presumption thereof arises.

Mrs. Olson's testimony is the sole evidence directly bearing upon the execution of the will. It clearly fails to establish that the will was executed in duplicate and that testator retained an executed duplicate when he left the original with the bank.

But it is contended that evidence aliunde establishes execution of such a duplicate copy and its retention by testator until he destroyed it on March 7, 1943, with the declaration that he was revoking his will and ending his provision therein for his family. [6 NJSuper Page 553] As to the copy of the will and its actual destruction the testimony is limited to that of the widow and of Mrs. MacCrowe, the latter a friend of the widow and of testator's. The following is a summary of the evidence upon that subject. It appears that shortly after John D'Agostino's marriage in April, 1942, he became involved in a very substantial suit instituted by his mother for recovery of a one-half interest in his winery business. Soon thereafter the testator and his wife returned from a "second" honeymoon trip to California, and their friends, Dr. and Mrs. MacCrowe visited at the D'Agostino apartment in Egg Harbor on Sunday afternoon, March 7, 1943. After some time spent in contemporary conversation John D'Agostino mentioned how disturbed he was about his mother's suit against him, and his belief that she had been influenced by his brothers and sisters. He complained that he didn't deserve such treatment in return for his generosity to all of his family and particularly the ones persuading his mother to ruin him. After absenting himself for a few minutes testator returned to the living room where his guests and his wife were sitting and handed Mrs. MacCrowe a paper saying it was his will and that it would show what he'd done for his family many years before in 1928. After remaining a few minutes he left the room again, and Mrs. MacCrowe, Mrs. D'Agostino and Dr. MacCrowe spent about one-half hour reading and discussing the instrument. From her prior experience as a typist, Mrs. D'Agostino recognized the typewritten portion of the document to be a carbon copy. Mrs. MacCrowe and Mrs. D'Agostino noted the specific provisions for different members of John's family, the fact the paper contained about five ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.