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Gray v. Cholodenko

Decided: September 15, 1955.

WARREN GRAY, JR., PLAINTIFF,
v.
NATHAN CHOLODENKO, IRVING L. HODES, DEUEL RICE AND WARREN GRAY, SR., JOINTLY, SEVERALLY AND INDIVIDUALLY, DEFENDANTS



Waugh, J.c.c. (orally).

Waugh

Warren Gray, Jr., filed a complaint in the Superior Court, Chancery Division. His action is best described by quoting from the opinion of Judge Clapp in the Appellate Division, which opinion is reported in 34 N.J. Super. 190, in which he says:

"By his complaint plaintiff sought redress of various sorts, including (in effect) relief from a decree of 1947, and a judgment of 1949, of the Essex County Surrogate's Court; the first probating his grandmother's will; and the second probating his mother's will. Plaintiff has no case unless relief is given from at least one of these probates."

On appeal this judgment was reversed and remanded to this court for trial on the issues of (1) fraud upon the court with respect to the probate of either the will of Elizabeth Gray or Louisa Smith; (2) if there was a fraud practiced upon the court with respect to the probate of either of the wills, did the plaintiff, Warren Gray, Jr., use due diligence in bringing this action?

This court has allowed the widest latitude possible in the examination and cross-examination of all witnesses and

parties to this action, since the complaint contains charges of fraud upon this court by two officers of the court.

It is the settled law of our State that attorneys owe the highest standard of duty and conduct to both the public and the courts. That was set forth in the case of In re Stein , reported in 1 N.J. 228, at page 237 (1949), in which the Supreme Court, speaking per curiam , stated:

"The courts and the public are entitled to the highest standard of conduct on the part of the members of the bar."

This court has considered all the testimony and exhibits offered in evidence and makes the following findings of fact:

1. The will of Louisa Smith was properly executed by her on November 22, 1947 at 95 Oakwood Avenue, Orange, New Jersey, in the presence of Mr. Nathan Cholodenko and Mr. Irving Hodes. The X-mark made on that will was made by Louisa Smith in her own hand. At the time of the execution of the will Reverend Deuel Rice was present in the room.

2. The will of Elizabeth Gray was properly executed by her on February 3, 1948 at her residence, 219 Harrison Avenue, Montclair, New Jersey, in the presence of Mr. Nathan Cholodenko and Mr. Irving Hodes. Mr. Warren Gray, her husband, was in and about the premises at the time of the execution of the aforesaid will. The entire signature Elizabeth Gray appearing on pages 1 and 2 of Exhibit P-9 were affixed by her in her own hand.

3. It follows that, since each will was properly executed, the admission to probate of each of these wills was ...


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