On appeal from the Bergen County Court, Probate Division.
For affirmance -- Justices Case, Oliphant, Burling and Ackerson. For reversal -- Chief Justice Vanderbilt, and Justices Heher and Wachenfeld. The opinion of the court was delivered by Ackerson, J.
The primary question for decision is whether the will of Robert Livingston, executed November 4, 1937, is void because of undue influence alleged to have been exerted upon the testator by his surviving wife, Gertrude A. Livingston.
The appeal is taken from a judgment of the Bergen County Court, Probate Division, which held that the aforesaid will was not the product of undue influence and affirmed the order of the Surrogate of Bergen County admitting it to probate. The contestant, Elsie Livingston Gellert, daughter of the decedent, appeals from this judgment in so far as concerns the issue of undue influence and also with respect to the amount of the counsel fee awarded to her, payable out of the estate. The proponent, Gertrude A. Livingston, takes a cross-appeal with respect to the allowance of any counsel fee as
well as an item of costs awarded by the court to the contestant. That portion of the judgment holding that the will of the decedent was duly executed in accordance with the formal statutory requirements is not questioned here by the plaintiff, Elsie L. Gellert.
The case was certified by this Court on its own motion while it was pending in the Appellate Division.
The will in controversy was executed by the testator in the law offices of Blake and Voorhees, New York attorneys, on November 4, 1937. By the second article of this writing he bequeathed and devised all his property to his wife, Gertrude, if she should survive him; and provided further, that should she predecease him, the entire estate was to go to his children of a former marriage, Robert, Jr., and the contestant, Elsie, in equal shares with further provisions concerning survivorship.
The decedent, Robert Livingston, died on February 19, 1948, in the City of Englewood, his home town, at the age of 79 years, leaving him surviving the proponent, Gertrude A. Livingston, and the aforesaid Elsie and Robert, Jr. The sole asset of the estate is 250 shares (out of 500 shares outstanding) which testator owned in the Robert Livingston Realty Corporation which he formed in 1929 to hold title to a valuable piece of real estate he had purchased in 1916 situated on the corner of Dean Street and Palisade Avenue, Englewood, on which location he conducted a prosperous stationery business for many years. When the old wooden structure on this site was destroyed by fire in 1936, the decedent erected a modern store and office building, known as the "Livingston Building," to replace it.
Testator was twice married. His first wife died in 1921 leaving three children of the marriage -- Elsie, the eldest, Robert, Jr., and Don. The last named was killed as a result of an accident in 1926. In the same year -- 1926 -- the decedent married his second wife, Gertrude Nelson, a widow, who had two sons of a former marriage, Frank and Wallace. The testator retired from active participation in the stationery business in 1926 and left its management to his son, Robert, Jr.
(or "Bus" as he was called). In December of 1926, the decedent and his wife, Gertrude, took possession of a new home he had purchased at 221 Sunset Avenue, Englewood, and Elsie, who was also married in 1926, moved into the old homestead at 172 Palisade Avenue upon the request of the decedent.
During the period from 1924 to the time of his death in 1948, the decedent executed seven wills, including a codicil executed in 1941. All but the first two were prepared by the same New York law firm -- Blake and Voorhees. The first of these wills dated August 8, 1924, directed the executors named therein to continue to operate the stationery business and to divide the net profits equally among the three Livingston children. The homestead on Palisade Avenue he devised to his daughter Elsie and the balance of the estate to and for the benefit of his children. After his second marriage in 1926, several wills were executed which are not in evidence. However a will, dated January 29, 1936, was placed in evidence, and, after specific bequests to testator's wife and children, it gave the income of the residue (including the Livingston Building) which was placed in a trust, to Gertrude Livingston for life and upon her death, the principal was to be equally divided between Elsie and Robert, Jr., with further provisions concerning survivorship.
In the spring of 1937, the stationery business known as Robert Livingston, Inc., managed by Robert, Jr., encountered financial difficulty and went into voluntary bankruptcy in June-July, 1937, and was saved by the efforts of the testator who arranged an advantageous settlement with the creditors. On June 9, 1937, testator and his wife, Gertrude, deeded the 172 Palisade Avenue house to Elsie subject to a mortgage of $2,000 which Elsie paid off. She then sold the house for $4,000 and moved away from Englewood. Other inter vivos transfers were made about this time. To his son, Robert, Jr., decedent gave his entire interest in the stationery business, and to his wife, Gertrude, he transferred his interest in the Sunset Avenue property which was their home from the time of their marriage in 1926 until the testator's death in 1948.
In July, 1937, Mr. Livingston decided to make a new will and a letter to Mr. Blake, his attorney, dated July 3, 1937, in the handwriting of his wife but signed by the testator, stated that in view of the aforesaid inter vivos transfers, he wanted certain changes made in his will. The will prepared from the instructions contained in this letter was executed on July 15, 1937. The original of this will was not produced and its contents are not disclosed. Four months later, on November 4, 1937, the testator made his final will which is the subject of this litigation. The proponent made the appointment for the signing of this will at the request of her husband and was present at its execution. The will gave all of the testator's estate outright to his wife, Gertrude, provided she survived him, and designated her as sole executrix. At the time of the execution of this will Mrs. Livingston also executed a will providing that in the contingency of her surviving her husband, all of her shares in the Robert Livingston Realty Corporation were to go to his children. Proponent had acquired the other 250 shares outstanding in the real estate corporation by gifts of two blocks of stock from her husband in 1937 and 1938.
On the 18th of June, 1941, the testator executed a codicil to the November, 1937, will. It provided that in the event of his wife, Gertrude, predeceasing him, the stock which he owned in the Robert Livingston Realty Corporation was to be placed in trust to pay the income therefrom in equal shares per stirpes, to the use of his children, Elsie and Robert, Jr., until such time as all his grandchildren had either died or reached the age of 30 years, and at that time the principal was to be divided among his descendants then living -- the codicil was not offered for probate since the contingency did not occur.
The mutual wills executed by the decedent and his wife on November 4, 1937, were kept in the custody of the New York attorney who held them until 1943 when proponent wrote to have them forwarded to New Jersey.
The first point presented on this appeal is that because of the confidential relationship existing ...