On appeal from the Hunterdon County Court, Probate Division.
For reversal and remandment -- Chief Justice Vanderbilt, and Justices Oliphant, Wachenfeld, Burling, Jacobs and Brennan. For affirmance -- None. The opinion of the court was delivered by Wachenfeld, J.
This is an appeal from a judgment of the Hunterdon County Court, Probate Division, admitting to probate the will of Cora S. Rittenhouse. We granted certification prior to hearing in the Appellate Division.
Testatrix died on August 7, 1953 at the age of 82. By her last will and testament, which was executed on January 6, 1949 at the age of 78, she named as her only specific devisee, residuary legatee and executor, Nicholas F. Gallicchio, a counsellor-at-law of this State, who is also the proponent of the will. Aside from an attorney-client relationship which existed between testatrix and Gallicchio, of which more hereafter, they were unrelated. However, testatrix had living at the time the will was prepared at least 15 cousins and a brother-in-law and a sister-in-law to whom she bequeathed a total of $2,100. It is not clear from the record before us exactly how much the devise and the residuary legacy to Gallicchio are worth, although it would appear to be a considerable sum.
Upon the offering of the will for probate, one of the cousins, Cora Salter, filed a caveat and charged the will was the product of undue influence on the part of Gallicchio.
The trial of this cause in the court below occurred on five hearing days extending over a period of 13 months which undoubtedly contributed much to the confusion indicated by the record before us. Neither the attorneys nor the court itself could be expected to produce a record of fundamental clarity under such a handicap. The interruptions, delays and the procedure pursued below are not to be commended.
On the first hearing day the proponent produced three subscribing witnesses, Samuel B. Whiteley and Louis N. Young, president and vice-president, respectively, of the
bank of which proponent was a director and general counsel, and Dr. Lloyd A. Hamilton, the testatrix' physician. They testified, in substance, that the will was executed in the directors' room of the bank; that the testatrix acknowledged it to be her last will and testament; that she had read it and it represented her wishes; and that the proponent, Gallicchio, was not present.
The will was in fact drawn by Philip Gebhardt, an attorney and counsellor-at-law in this State for many years, who, the subscribing witnesses testified, was present and attended to the execution of the will.
Following the testimony of the subscribing witnesses, the will was offered for probate, but the caveatrix moved to have the proponent take the witness stand before she went ahead with her case. The trial was recessed and at the next session, five months later, the court suggested Gallicchio take the stand and answer just three questions. On direct examination, Gallicchio testified he had had nothing to do with the preparation of the testatrix' will, was not present at and did not arrange for the execution of the will nor the place or the manner in which the will was executed.
Counsel for the caveatrix then cross-examined the proponent at great length, at times adopting him as his witness. At the conclusion of the cross-examination both sides declined to go forward with further evidence, the caveatrix contending enough had been shown to cause the burden of proof to shift to the proponent and the proponent claiming the burden still lay with the caveatrix.
At this juncture the court ruled that the burden lay with the caveatrix despite the fact that previously the court had announced: "Well, I have read the case of In re Davis' [Will ] which is in 14 N.J. 166 and I believe in view of the ...