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Matter of Estate of John P. Dubois

Decided: October 24, 1950.

IN THE MATTER OF THE ESTATE OF JOHN P. DUBOIS, DECEASED


McGeehan, Jayne and Wm. J. Brennan, Jr. The opinion of the court was delivered by Jayne, J.A.D.

Jayne

[9 NJSuper Page 282] This appeal presents for our consideration the legal propriety of a judgment of the County Court (Probate Division) of Gloucester County affirming an order of

the Surrogate's Court admitting to probate the will of one John P. DuBois who died on August 8, 1948. The instrument is dated April 16, 1941. The sole criticism of the judgment is that the proof of the execution of the instrument in accordance with the statute (R.S. 3:2-3, N.J.S.A.) was inadequate.

It is immediately observed that the writing bears the signature of the testator and a full and complete attestation clause beneath which are the signatures of two witnesses.

It must be recognized that a complete attestation clause supplemented by proof of the signatures of the testator and of the subscribing witnesses carries a weighty presumption of the truth of the circumstances therein declared to have accompanied the execution of the will. Its purpose is to preserve in permanent form an accurate record of the facts which will survive the natural infirmities of human memory and to afford protection as well against deliberate misrepresentations. In re Seymour's Will , 114 A. 799 (Prerog. 1921).

The presumption arising from the clause has never been regarded as conclusive. It may be defeated or surmounted by oppugnant testimony, even by that of the subscribing witnesses. Berdan's Case , 65 N.J. Eq. 681, 55 A. 728 (Prerog. 1903). Yet the clause operates to cast the obligation upon the contestant to negative its averments upon the points in dispute. Bloom v. Terwilliger , 78 N.J. Eq. 221, 78 A. 742 (Prerog. 1911).

We have characterized the presumption as a weighty one. True, there are several earlier cases in which the presumption seems only to have been accorded the strength of prima facie proof. Mundy v. Mundy , 15 N.J. Eq. 290 (Prerog. 1858); Tappen v. Davidson , 27 N.J. Eq. 459 (Prerog. 1876); Allaire v. Allaire , 37 N.J.L. 312 (Sup. Ct. 1875); affirmed, 39 N.J.L. 113 (E. & A. 1876); Ayres v. Ayres , 43 N.J. Eq. 565, 569, 12 A. 621 (Prerog. 1887); Elkinton v. Brick , 44 N.J. Eq. 154, 15 A. 391 (Prerog. 1888).

It may, however, be readily perceived by an examination of the procession of pertinent decisions that the probative

substance of the presumption has been materially invigorated. The attestation clause is now accepted as "a most important element of proof" and the derivative presumption is deemed impregnable unless it is devastated by "strong and convincing evidence." In re Lazzati , 131 N.J. Eq. 54, 23 A.2d 566 (E. & A. 1942); In re Wherry's Estate , 131 N.J. Eq. 505, 25 A.2d 912 (E. & A. 1942); James v. Wendehack , 1 N.J. Super. 203, 63 A.2d 710 (App. Div. 1949); cert. denied, 1 N.J. 603 (1949).

It has been stated that "the line of demarcation between what is 'clear, satisfactory and convincing' and that which removes 'all reasonable doubt' is more fanciful than real." In re Calef , 109 N.J. Eq. 181, 185, 156 A. 475 (Prerog. 1931); affirmed, 111 N.J. Eq. 355, 162 A. 579 (E. & A. 1932).

We necessarily proceed to examine the evidence in the present case with an appropriate recognition of the probative influence of the attestation clause.

The will, as previously stated, was executed on April 16, 1941. The subscribing witnesses were called upon to give their testimony on December 19, 1949. Obviously more than eight years had elapsed. There is nothing in their testimony, or indeed elsewhere in the transcript before us, to indicate that either consciously and intentionally testified untruthfully. The inadequacies in the testimony of the one or the other may ...


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