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In re Baker

Decided: December 21, 1951.

IN THE MATTER OF WALTER J. BAKER AND CHARLES E. BIEBER, CHARGED WITH CONTEMPT OF COURT


On presentment by the Committee on the Unauthorized Practice of the Law of the Bergen County Bar Association.

For guilty -- Chief Justice Vanderbilt, and Justices Heher, Wachenfeld, Burling and Ackerson. For not guilty -- Justice Case. For guilty as to Bieber. Not guilty as to Baker -- Justice Oliphant. The opinion of the court was delivered by Vanderbilt, C.J.

Vanderbilt

[8 NJ Page 324] This matter came before the court on a presentment by the Committee on the Unauthorized Practice of the Law of the Bergen County Bar Association. The presentment is based on facts submitted to the committee by Surrogate Donald G. Dutcher of Bergen County and Chauncey A. Phyley of the Bergen County bar with reference to the conduct of Deputy Surrogate Walter J. Baker of Bergen County and Charles E. Bieber, a title searcher working in the Bergen County Court House, in the preparation and execution of a will and a power of attorney for Walter Scott Knoph, a farmer of about 80 years of age residing in that county. The presentment states that the will after providing for specific bequests totalling $625 made Baker and Bieber residuary legatees and executors with a power of sale of real estate; that the power of attorney gave Baker and Bieber full control over all of Knoph's property

in the event of his becoming mentally incompetent; that Knoph had not read the will before signing it and giving it to Baker and Bieber to lodge with the Surrogate of Bergen County for safekeeping under a practice then in vogue there; and that instead of so lodging it Bieber kept it and surrendered it only after repeated requests. The presentment states that it was made to the court "for such further proceedings as it may deem necessary to determine whether or not the conduct of the said Walter J. Baker and Charles E. Bieber tends to bring the authority and administration of this Court into disrespect." We thereupon issued an order directed to Baker and Bieber requiring them to show cause why they should not be adjudged guilty of contempt of court and authorizing the taking of depositions to ascertain the facts.

I.

The depositions reveal not the mere drafting and execution of a will and a power of attorney but a sordid story of infirm, friendless old age grossly imposed upon by a public official and his co-conspirator. The testimony of Bieber and Baker alone would be sufficient to convict them. Knoph is a fruit grower owning a small farm in Ramsey appraised at $9,000. He is uncertain of his exact age but he thinks he is 79. His wife died last year while in the State Hospital for the Insane at Morris Plains. According to Baker, "He was very bitter with his sister-in-law, because she threatened to send him to Morris Plains, claiming that he had sent her sister there, which was his wife." Knoph had heart spells quite often that lasted on an average of three-quarters of an hour. He had a special medicine which he carried with him and he had "one of the finest doctors in the country" from Suffern but he couldn't remember his name; "I know his telephone number." Baker himself testified that Knoph once said to him, "Oh, my gosh, I didn't know it was you. Since my wife died, my mind is going blank." The testimony and the correspondence between the parties showed that he was seeking

aid about the ordinary affairs of life, such as the purchase of a lawn mower and "bird scarers." He expressed an aversion to both bankers and lawyers and his penuriousness led him to seek free legal advice. He was an easy prey for any adventurer and yet not altogether incapable of rising to the occasion, a characteristic which precipitated the present proceeding. Baker had been Deputy Surrogate of Bergen County for seven years and before that he had been a member of the Bergen County Police Department for 18 years. Bieber had been a title examiner for nearly 40 years. Neither of them had been licensed to practice law.

Knoph first met Baker in February, 1951, when Knoph had a neighbor take him to the surrogate's office to get help with reference to some inheritance tax waivers on his wife's property so that he could get money out of the bank. From then on until September Baker says he saw Knoph "once a week for the whole time. I don't think I ever missed a time until I went on my vacation in September." These meetings were generally held at Knoph's home; "I went up there mostly to cheer him up and advise him; to pacify him and to see if we could help him and do something for him. He craved for somebody to be friendly with him and close to him. I really took a liking to him. We never had any arguments as long as I knew him, until I went on my vacation" in September.

On their first meeting Knoph also wanted help with respect to the title to his property and Baker took him across to the searching room in the court house to meet Bieber. Bieber not only made a search of two pieces of property owned by Knoph and his wife, but he checked certain easements and made sketches of them for Knoph without charge. Knoph also told Bieber about the trouble he was having with the county adjuster concerning a bill for his wife's board at Morris Plains. Bieber likewise saw Knoph about once a week, generally with Baker, though he visited Knoph on at least two occasions with his wife. Both Baker and Bieber were assiduous in cultivating their "client."

The matter of drawing a will for Knoph came up after Bieber had finished his search of the property. Baker's testimony makes it apparent that he realized that Bieber and he were treading on dangerous ground in drafting Knoph's will:

"He [Knoph] said that when Charley got through drawing up the papers on searching his property he wanted to know if we would take a little problem on for him. He wanted to draw a new will. He said that the contents would be about the same [as an earlier will which he had given to Baker] with a few changes. I told him I couldn't do anything with the will. I told him that I worked in the Surrogate's office and I also told him that he ought to get a lawyer, but he was very bitter on all lawyers. He said he would like us to do it for him. It was quite some time later that he went over to see Charley. I went over with him to see about the property, and I said, ' Charley will be in some trouble if he tries to make a new copy of the will.' Charley said, 'We will wait until we get the other things done.' It was in the first part of June before Charley got to do anything about it. We went every week until the last part of June on that will, changing it."

Bieber likewise testified that he knew the risk he was incurring:

"Q. You knew, of course, that the preparation of a will is considered to be part of the practice of law, did you not? A. Well, I knew it to that extent, but I was in a position with this man -- it was upon his insistence in helping him. I didn't drag him down to a lawyer's office.

Q. You knew a lawyer should draw a will when you told him that you would take him to a lawyer? A. I do. I have been in the title business.

Q. And notwithstanding that knowledge, you went ahead and drew this will and supervised it execution. Isn't that right? A. That's right."

The will which Baker and Bieber testified took several weeks to prepare occupied only one side of a single sheet of paper:

"IN THE NAME OF GOD, AMEN.

I. Walter Scott Knoph of the Borough of Mahwah, County of Bergen and State of New Jersey do make, publish and declare this my Last Will and Testament, hereby revoking any and every will by me heretofore made.

FIRST: I direct that all my just debts and funeral expenses be paid by my executors hereinafter named as soon after my decease as is practicable.

SECOND: I give, devise and bequeath to the following:

George Marrice, my wife's brother, of 8413 Beamley Ave., Los Angeles, California, $50.00.

George Marrice, Jr., of 8413 Beamley Ave., Los Angeles, California, $50.00.

Mrs. Arthur G. Smith, my wife's sister, of 297-15th St., Brooklyn, N.Y. $50.00.

David E. Rocher, Airmount Rd., Mahwah, N.J. $50.00.

Airmont Luthern Church, Airmont, N.Y., $100.00.

St. James Church, Ramsey, New Jersey $25.00.

Ethel Jinks, Mineola, N.Y., $25.00.

Jessie Wieber of Schenectady, New York, $25.00.

Fred Lorenz of Mahwah, New Jersey, $200.00, and Mr. and Mrs. E. A. Roberts or surviver, of Ramsey, New Jersey, $50.00.

Should any of the beneficiaries under this will, object to the probate thereof, or in any wise, whether directly or indirectly, contest, or aid in contesting the same or any of the provisions thereof, or the distribution of the whole, or any part of my estate, thereunder, then, in every such event, I annul any bequest herein made to such beneficiary, and it is my will that such beneficiary shall be absolutely barred and cut off from any share in my estate.

I hereby give and devise and bequeath unto my Executors herein named, the full power and authority to sell and convey any and all real estate, whereof I may die seized at such times and for such prices as they may consider for the best interest of my estate. I also give for perpetual care of my Cemetery lot at Airmont Cemetery, Airmont, New York. All the rest, residue and remainder of my estate real, personal and mixed I do give, devise and bequeath to Walter J. Baker and Charles E. Bieber, absolutely.

Lastly, I nominate and appoint my two faithful friends Walter J. Baker and Charles E. Bieber Executors of this my last Will and Testament, and I further direct that my said Executors shall not be required to give any bonds for the faithful performance of their duties in any court or jurisdiction.

IN WITNESS WHEREOF, I have hereunto set my hand and seal this 6th day of June, 1951.

Walter Scott Knoph (L.S.)

WALTER SCOTT KNOPH

Signed, sealed, published and declared by the said WALTER SCOTT KNOPH, the testator above named, as and for his Last Will and Testament in the presence of us who were both present at the same time and who at his request, in his presence and in the presence of each other, have hereunto subscribed our names as witnesses, on this day of , 1951.

WITNESSES:

Melvin Litchult residing at Suffern, N.Y.

Edna Litchult residing at Suffern, N.Y.

Theresa A. Hughes residing at River Edge, N.J."

Passing the failure to date the attestation clause, it will be observed that the amount of the bequest for the perpetual care of Knoph's cemetery lot is left blank and that the residuary clause is carefully tucked away in a paragraph dealing with other matters. Baker's story as to how his name and Bieber's got into the will as executors is fantastic:

"Well, next to the last time that we went up there, he didn't have any executors for the will. He said he would have two witnesses, but no executors. We insisted that he should get some. The next to the last time we went up there, I had the will drawn up, and he wouldn't consent to the executors * * * He said, 'Why don't you go on the will?' Charley said, 'I will go on it if you can't get anybody to help you out.' I said, 'No.' He said, 'Look, you have been my closest friends, and if you are going to help me if I am sick, why don't you help me now? I would rather have the two of you.' I thought it was a good thing and I consented to be one of the executors."

His only explanation of how he became a residuary legatee is equally meaningless: "On the ground that we had to dispose of some property if he got sick or something, to be used because there was no money." This is hardly satisfactory justification for ...


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