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In re Probate of

Decided: December 12, 1955.

IN THE MATTER OF THE PROBATE OF THE ALLEGED WILL AND ALLEGED CODICIL OF BERTHA S. MYERS, DECEASED


On appeal from the Essex County Court, Probate Division.

For affirmance -- Chief Justice Vanderbilt, and Justices Heher, Oliphant, Wachenfeld, Burling, Jacobs and Brennan. For reversal -- None. The opinion of the court was delivered by Wachenfeld, J.

Wachenfeld

These appeals arise out of proceedings instituted following the admission to probate of the will and codicil of Bertha Myers, deceased.

Bertha Myers died without heirs or next of kin on February 2, 1955 and her will and codicil, dated June 28, 1949 and January 11, 1950, respectively, were admitted to probate on March 3, 1955, no caveat having been filed. The present controversy took root during Bertha's lifetime following her husband Charles' death. In addition to Bertha, Charles was survived by a brother, Arthur Myers, and several nieces and nephews, including Viola Friend, the present petitioner, and the respondent Mervin G. Wiener, who is also an attorney.

Although Charles' will is not reproduced in the record before us, apparently it established a trust of which Bertha

was to receive the income during her lifetime, and she, Mervin Wiener, Max Hammerschlag, Viola's father, Arthur Myers, and William Wiener, Charles' brother-in-law, were named as executors under the will and as trustees. Mervin Wiener also served as counsel to the executor-trustees.

Controversy developed among the trustees as to the nature of the trust investments, Max Hammerschlag and Arthur Myers charging their co-trustees were making improper and speculative investments of trust funds so as to favor the income beneficiary, Bertha. Mervin Wiener was also accused of giving improper legal advice to the trustees and of acting in bad faith. These differences ripened into an action instituted in the former Chancery Division and, needless to say, the divers branches of the family were not drawn closer together by these developments.

As noted above, following Bertha's death her will and codicil were admitted to probate. By these instruments, she made substantial bequests of money to various charities and to several individuals and relatives. Mervin Wiener and his sister, Theodora M. Lowy, were the subject of specific bequests of shares of Public Service Company stock. Paul Lustbader, an attorney, was bequeathed the sum of $5,000 "for his loyal services to my late husband, Charles M. Myers."

Under paragraph 18 of the will, later amended by the codicil, a trust was created for the benefit of Bertha's "grandniece, Cecil Wiener," and her "grandnephews, Theodore Lowy, of Newark, New Jersey, and Sigmund Rothchild, of New York, New York." (Cecil Wiener is the daughter of Mervin, and Theodore Lowy is Theodora's son.) The residue of Bertha's estate was left to Mervin and Theodora. Mervin and the Federal Trust Company were named as executors. Viola Friend and her branch of the family were not mentioned in either the will or the codicil.

One day less than three months following probate, Viola filed an instrument denominated "complaint" in the Essex County Court, Probate Division, accompanied by an order to show cause, directed to Paul Lustbader and Mervin Wiener, why probate should not be set aside. Briefly summarized,

Viola's complaint alleges that Lustbader, a member of the bar of this State, was the scrivener of Bertha's will, under which he received a bequest of $5,000, and that Bertha did not have independent legal advice in the preparation of the will. Following these allegations, reference is made to the lack of family relationship, except by marriage, between Bertha and the principal legatees under her will, Mervin Wiener and Theodora Lowy and their children. Viola, it is said, "stands in the same relationship to the ...


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