Eastwood, Jayne and Francis. The opinion of the court was delivered by Eastwood, S.j.a.d.
The defendants appeal from the judgment entered in the Superior Court, Chancery Division, in favor of the plaintiffs and against the defendants in a matter wherein plaintiffs sought to establish that Warren E. Emley, Sr. and Mary L. W. Emley, his wife, now both deceased, executed mutual, reciprocal and irrevocable wills in accordance with an agreement between them, and adjudging that Mrs. Emley's will, dated December 22, 1950, be given effect, impressing a trust upon certain real property of which Mrs. Emley died seized, appointing a trustee to administer the assets of Mrs. Emley's estate and restraining defendants from selling or otherwise disposing of such assets of Mrs. Emley's estate.
We proceed with the recital of the pertinent facts, viz.:
Warren E. Emley, Sr., a widower, married Mary L. W. Brown, a widow, on August 18, 1945. By his former marriage Mr. Emley was the father of the individual plaintiffs herein, and by her former marriage Mrs. Emley was the mother of the individual defendants herein.
Prior to her marriage to Mr. Emley, Mrs. Emley was the owner of a house and lot used as a summer dwelling, situate at Roscoe, New York, and in 1946, following their marriage,
Mr. and Mrs. Emley purchased a home in Highland Park, New Jersey, each paying approximately one-half of the purchase price thereof and taking title in their names as tenants by the entirety.
Mr. and Mrs. Emley, out of separate funds, each contributed toward the cost of repairing and remodelling the Highland Park residence, Mr. Emley contributing the major portion according to the record. Both parties also contributed toward the maintenance of the Roscoe, New York house, but their proportionate share is unknown.
In 1950 Mr. Emley, approximately 65 years of age, appeared to be in good health, and Mrs. Emley, somewhat younger of the two, was known to be suffering from cancer. On December 22, 1950 Mr. and Mrs. Emley, by appointment, called at the office of George R. Morrison, Esquire, an attorney-at-law of the State of New Jersey, for the purpose of preparing and executing their respective wills. It appears that Mr. Emley gave Mr. Morrison the instructions for the preparation of both wills as follows: (1) each testator was to devise his interest in the Roscoe property in the proportions of 20% to the children of Mr. Emley and 80% to the children of Mrs. Emley; (2) each testator was to devise his interest in the Highland Park property in the proportions of 70% to the children of Mr. Emley and 30% to the children of Mrs. Emley, and (3) the remainder of each testator's estate was to go to the surviving spouse for life, or until remarriage, and then to the children of the testator in each case, in fee.
The record discloses that Mr. Morrison then directed the parties' attention to the fact that Mr. Emley possessed no interest in the Roscoe property which could be presently disposed of by his will, and that the Highland Park property was held jointly by them as tenants by the entirety and, upon the death of one of them, title would vest in the survivor by operation of law. By way of reply Mr. Emley stated: "That will be taken care of." Mr. Morrison queried Mrs. Emley to determine whether or not that was the way she wanted it, to which she replied: "That is the way he wants it, so
what can I do." The wills were prepared in accordance with the instructions, were carefully read by the testators and then duly executed.
At this point, we think it may be well to indicate the relationship of the scrivener of the wills, Mr. George R. Morrison, and his knowledge of the background of the decedents. Mr. Morrison was familiar with the history and facts regarding the title to the Roscoe, New York property. He represented Mrs. Emley in the administration of her first husband's estate and represented the Emleys when they purchased the Highland Park, New Jersey property, to which they took title as tenants by the entirety. As mentioned, he drew the reciprocal wills which were executed and attested in his presence. He has acted as attorney for the executors under Mr. Emley's will and on June 7, 1951, on the day of the funeral services for Mr. Emley, pursuant to instructions telephoned to him from Mrs. Emley, he prepared her new will revoking the prior reciprocal will, although he did not supervise or attend the execution of the new will. Mr. Morrison acted as attorney for the executors under Mrs. Emley's will.
Mr. Emley died on June 5, 1951, and his will dated December 22, 1950 was duly probated. As indicated hereinabove, Mrs. Emley called Mr. Morrison, requesting him to prepare a new will wherein she would leave her entire estate to her children by her former marriage. Mr. ...