Decided: October 20, 1955.
MARGARET LAUER, PLAINTIFF-RESPONDENT,
ALBERT R. MCALLISTER, JR., EXECUTOR OF THE LAST WILL AND TESTAMENT OF HENRY M. HANNAN, DECEASED, AND ALBERT R. MCALLISTER, JR., IND., AND J. HOWARD MCALLISTER AND CAROLYN MCALLISTER, DEFENDANTS-APPELLANTS, AND EMILY MORRIS, DEFENDANT
Clapp, Jayne and Francis.
[37 NJSuper Page 340]
The opinion filed below by Judge Haneman will be found in 35 N.J. Super. 596 (Ch. Div. 1955). In the course of that opinion (35 N.J. Super. , at page 600) it was said:
"It is even more conceivable, having in mind the discrepancy in their ages, that the testator and the scrivener of the will never considered that Albert R. McAllister would predecease said testator, and that they therefore saw no reason to provide for a substitution should such an event occur."
This sentence we find to be unnecessary to the decision. In fact the clause in the will appointing Albert R. McAllister executor was made expressly conditional: "(if he be living)," and "in the event of his prior decease," Albert R. McAllister, Jr., was appointed in his stead, all as noticed in the opinion.
Except in this respect, we are in accord with Judge Haneman's opinion and affirm the judgment below for the reasons therein expressed.