On complaint for probate of paperwriting as Soldier's Will. (R.S. 3:2-2; 2-7.)
[19 NJSuper Page 48] Complaint is made for the probate, as the last will and testament of Richard James Knight, deceased, of a letter bearing date August 30, 1950, written by
decedent to his uncle, William Knight, and claimed to be lawful and sufficient to the purpose, according to the statute respecting the making of wills by soldiers in actual military service (R.S. 3:2-7). The letter's contents have reference to personal property only.
Decedent was a private in the United States Marine Corps and met his death on May 20, 1951, while engaged in combat service in the Korean theatre of hostilities. He was born on January 24, 1931, so that at his death he had not attained his majority.
The primary question is whether decedent's non-age, in and of itself, disqualifies the paper as a testamentary disposition. It centers in two brief sections of Revised Statutes (3:2-2 and 3:2-7), and in whether these sections are inter-related. R.S. 3:2-2 provides: "Wills made by a person within the age of twenty-one years, or by an idiot, lunatic or person of non-sane mind and memory, shall not be valid." R.S. 3:2-7 provides: "Disposition of movables, wages and personal estate may be made as heretofore by a soldier while in actual military service or by a mariner or seaman while at sea and nothing contained in this chapter shall affect such dispositions." Does the scope of reference carried by the words "made as heretofore" in the latter section include release from the age requirement in the former? The answer lies in the history of the soldiers' and mariners' proviso in the law of wills, a subject to which legal scholarship has given some attention. (31 Harv. L. Rev. 1024, 1917-18; 27 Yale L.J. 806, 1917-18; 33 Iowa L.R. 48, 1947). The two sections come to their respective places in our current revision by way of a long line of antecedent enactments, English and American, a careful review of which leaves no doubt, in my opinion, that R.S. 3:2-7 is not a modification of and bears no reference to the provisions of R.S. 3:2-2, and that the present qualifying age for testamentary capacity stands unaffected by it.
It will be seen, for one thing, that throughout the phases of the law that witnessed first the absence of a full age requirement
for disposition of personalty, and later the establishment of that requirement, the special enabling provision for soldiers and mariners has remained unchanged. I take this to be one reason for concluding that these enablements concern requisites of valid will-making other than those respecting testamentary age. For cases indicating the proper application of R.S. 3:2-7 see In re Sheridan , 21 N.J. Misc. 473; In re Straulina , 4 N.J. Misc. 599 (Orph. Ct. 1926); In re Beck , 142 N.J. Eq. 15 (Prerog. 1948).
Moreover, having in mind how provocative of contest probate issues are so commonly found to be, the well nigh complete lack of decisions on the particular point in issue I believe to show the non-existence of the statutory meaning that plaintiff urges. There is nothing to indicate that the question has ever come up for decision in this State. And curiously enough but three cases have been found throughout the country (Goodell v. Pike , 40 Vt. 319 (1867); In re Evans' Will , 188 N.W. 774 (Iowa , 1922); Henninger's Est. , 30 Pa. Dist. 413 (Pa. 1921). The Vermont case (supra) held the infant soldier's will invalid. The provision of our statute that a soldier's will "may be made as heretofore" was parallelled in the Vermont statute by the provision that "nothing in this chapter" shall be taken "to prevent" the making of a will by a soldier under the conditions indicated, "as he might otherwise have done." The court held the latter reference to be "merely to the mode of execution." In the Iowa case also the will was declared invalid, but the decision does not present the reasoning that in my judgment is applicable to the case before us. In the Pennsylvania case the will apparently was nuncupative. The court sustained it but the decision has no feature that is helpful here.
In the English aspect of the matter there will appear what I judge to be positive and peculiar emphasis of the non-relation of testamentary age to the historic proviso in question. To begin with, in the English law, where the statutory provisions that concern us have their origin, there was sharp
difference between the testamentary age requirement in relation to dispositions of lands and those in relation to dispositions of personalty. After a period in England immediately following the Norman Conquest and during which wills of realty were not permitted at all (except by the resort to uses), there came the enabling acts of the reign of Henry VIII. By these we find it provided, among other things, "That wills or testaments made of any manor, lands, tenements or other hereditaments, by any woman covert or person ...