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In re Probate of

Decided: November 16, 1954.

IN THE MATTER OF THE PROBATE OF THE ALLEGED WILL OF EMMA L. HOLIBAUGH, DECEASED


Simmill, J.c.c.

Simmill

[33 NJSuper Page 233] On September 16, 1948 the Monmouth County Orphans' Court entered a decree of adoption whereby the decedent, Emma L. Holibaugh, then aged 56, was adopted by John Bennett pursuant to R.S. 2:39-1 et seq. On November 13, 1953 Miss Holibaugh died, John Bennett having predeceased her. On November 24, 1953 George Walter Holibaugh, claiming to be a natural brother, and Frederick R. Burns, claiming to be a natural half-brother, filed a caveat against the probate of Miss Holibaugh's last will and testament. The executor and other persons who are proponents of the will now move to dismiss the caveat on the ground that George Walter Holibaugh and Frederick R.

Burns have no interest in the estate of Emma L. Holibaugh and, therefore, may not file a caveat , contending that on and after January 1, 1952, the effective date of N.J.S. 2 A:22-1, the brother and half-brother had no right to inherit from a person who had been adopted. The caveators have also made a motion to compel the proponents to join certain indispensable parties, to wit, the heirs of John Bennett.

It is established that the right to file a caveat is permitted only to those with an interest of a contention against the probate of a will or who may be injured by admitting a will to probate. 1 Kocher, New Jersey Probate Law, p. 197.

"A caveat may be filed by any person who would be injured by the probate of a will, and its function is to prevent probate without the caveators having an opportunity to be heard." In re Myers Case , 69 N.J. Eq. 793, at 799 (E. & A. 1906).

In In re Van Doren's Estate , 119 N.J. Eq. 80 (Prerog. 1935), Vice-Ordinary Berry, quoting from In re Coursen's Will , 4 N.J. Eq. 408 (Prerog. 1843), said:

"It is a general rule that all persons who might be injured by admitting a will or codicil to probate, may caveat against it."

The Court of Errors and Appeals in the case of Middleditch v. Williams , 47 N.J. Eq. 585 (E. & A. 1890), stated:

"No interest accrues to them (the caveators) by reason of kinship to the testator, for in neither event, whether the will stands or falls, do they profit."

The law seems settled in New Jersey that to entitle a person to file a caveat he must have some interest in the result of the contention against the probate of the will, and this interest is lacking in the caveators if the statute at the time of decedent's death, to wit, N.J.S. 2 A:22-3, is the controlling one. Caveators concede this, but contend that the statute in effect at the time of the adoption, R.S. 2:39-1, controls, and therefore they have an interest.

The pertinent part of N.J.S. 2 A:22-3 provides:

"The adoption, when granted by the court, shall have the following effect: * * *. b. In all other respects all rights, privileges and obligations due from the natural parents to the person adopted and from the person adopted to them and all relations existing between such person and them shall be at an end, including the right of the natural parents and their kindred to take and ...


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