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In re Probate of

March 5, 1951

IN THE MATTER OF THE PROBATE OF THE ALLEGED CODICIL OF MARY V. STROMING, DECEASED. GILBERT STROMING, ONE OF THE NEXT OF KIN, ETC., CAVEATOR-APPELLANT,
v.
RUSSELL E. STROMING, AS EXECUTOR, &C., OF MARY V. STROMING, DECEASED, DEFENDANT-RESPONDENT



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

Brennan

[12 NJSuper Page 219] Appellant, Gilbert Stroming, filed a caveat against the probate of a codicil to the will of his mother, Mary V. Stroming. The Passaic County Court, Probate Division, after hearing, entered judgment on

July 12, 1950, admitting the codicil to probate, and Gilbert appeals.

Appellant's brief argues that the trial judge "developed a prejudice against the caveator" which "of necessity influenced his subsequent rulings to the detriment of the contestant," that this hostility was "perhaps precipitated by argument of (caveator's) counsel, who sought to preserve and protect the interests of a client" and, further, "It required more than a perfectly controlled temper on the part of trial counsel to cope with the actions, arguments, criticisms and dictates of the trial court, especially where it was felt that there was no reason or provocation for such conduct." The charge is based upon a number of sharp exchanges with counsel concerned with rulings upon objections to questions put to witnesses by appellant's counsel and upon the vigor and nature of the examination of appellant made by the trial judge. Many of the exchanges with counsel and the court's examination of appellant display the use by the judge of a regrettable acerbity of language and an impatience of attitude toward the appellant which should have been avoided despite their provocation in many instances by the unwarranted persistence of appellant's counsel in pressing his position after adverse rulings. "It must be borne in mind that, in the effectual maintenance of a strong and independent court system, the appearance as well as the actuality of fair and impartial judicial administration must at all times be sought." State v. Illario , 10 N.J. Super. 475 (App. Div. 1950). The judge and counsel, as officers of the court, share the responsibility for the faithful and meticulous performance of this high duty.

We have, in the circumstances, exercised our discretionary power under Rule 1:2-20 (see Rules 4:2-6 and 3:81-13) and have made an independent finding of the facts. We are satisfied that the codicil was properly admitted to probate. We perceive no prejudicial error in the rulings on questions of evidence. Counsel for appellant conceded at the oral argument that the record included all evidence he sought to adduce except that he argues he was not permitted sufficiently to develop, particularly on cross-examination of witnesses, evidence

of "suspicious circumstances" which he contends are inferable from the choice of witnesses to the codicil, the difference in value between his client's inheritance and that of the beneficiary under the codicil and the bequest to that beneficiary not only of certain notes but also of all other obligations due to testatrix from Goodyear Sundries & Mechanical Co., Inc. The trial judge might well have allowed greater latitude of examination on these subjects. No prejudicial error was committed, however, inasmuch as it is plain to us that, in this case, the fullest development of these circumstances would not have supplied the requisite proofs to sustain the caveator's claim.

Mary V. Stroming died January 27, 1950, at the age of 58, survived by Gilbert and another son, the defendant executor, Russel F. Stroming. Her husband and the sons' father, Frederick, died in January, 1940. He had operated the corporate business of Goodyear Sundries & Mechanical Co., Inc., in New York City. After his death his widow acquired 51 per cent of the capital stock of the company and Russel acquired the remaining 49 per cent. Mrs. Stroming, as president, and Russel, as secretary, thereupon undertook the active management of the business. They prospered from 1942 to 1948 sufficiently to receive salaries of $300 per week each. When business fell off, Russel and his mother both advanced sums for working capital which were recorded on the company's books as loans and which at the end of 1948 amounted to $5,250 as to each. Mrs. Stroming's salary was reduced to $200 per week and remained at that figure until her death. Russel's salary was reduced also, but not so much, and the reduction was substantially restored when his mother's illness forced her to stop work in April, 1949, and Russel assumed the full burden of running the business.

In January, 1949, the business was in need of more assistance and Mrs. Stroming advanced $10,000 for which she received 32 company notes in the amount of $300 each and one note for $400. Russel had just bought a home and could not contribute to the financing. None of the notes was paid before testatrix' death.

On November 18, 1946, Mrs. Stroming executed a will, drawn by Mr. Kalfus, a New York attorney who was and for ten years had been counsel for the company and was then in private practice. Two months later, in January, 1947, the attorney withdrew from private practice and joined the company as a vice-president.

The will bequeathed Mrs. Stroming's 51 per cent stock interest in the company to Russel, and gave the residue of her estate to Gilbert.

Consistent with her testamentary plan, testatrix made gifts to Gilbert of $9,000 in 1947 when he purchased his home, and $12,000 on or about October 25, 1949, when she sold her residence. In April, 1949, before being hospitalized for a second operation for a cancerous condition, she entrusted the company notes to Gilbert. He does not claim that she intended to make a gift to him of the notes at the time but ...


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