On appeal from the Union County Court, Probate Division, to the Appellate Division of the Superior Court, certified by the Supreme Court on its own motion.
For affirmance -- Chief Justice Vanderbilt, and Justices Heher, Oliphant, Burling, Jacobs and Brennan. For reversal -- None. The opinion of the court was delivered by Vanderbilt, C.J.
This is an appeal by the proponents of the last will and testament of William Hale, deceased, from the judgment of the Union County Court setting aside the probate of that document granted by the surrogate, on the ground that the will was not published as required by N.J.S. 3 A:3-2. It is being considered by this court as a result of a certification of the matter on our own motion.
The paper purporting to be the last will and testament of William Hale, deceased, was dated June 17, 1954, and was offered for probate by his two sons, Benjamin and Joseph Hale, who were named as executors. The will contained the usual attestation clause reciting the statutory requirements and was signed by two subscribing witnesses, Carrie Reuter before the surrogate, made a sworn deposition that the and Celia Pell. This latter witness, in the initial proceedings testator had published and declared the writing to be his
last will and testament and did perform all of the acts recited in the attestation clause. The will was then admitted.
Dora Hale, the decedent's second wife, not the mother of the proponents, then moved on order to show cause to set aside the probate of the will on the ground that it had been procured by the undue influence of the sons exercised upon the decedent during his last illness. After hearings, the trial judge concluded there was no undue influence sufficiently proven. He properly adverted to the rule that motive and opportunity to exercise undue influence were not sufficient in themselves to invalidate a testament, and short of it appearing that the motive was pursued and opportunity was employed so as to destroy the freedom of will and judgment of the testator, the document purporting to be his last will must be upheld, In re Neuman's Estate, 133 N.J. Eq. 532 (E. & A. 1943); In re Dyer's Will, 135 N.J. Eq. 58, 61 (E. & A. 1944); In re Filo's Estate, 9 N.J. Super. 146 (App. Div. 1950). He did, however, find and determine that the proponents had failed to establish that the will was published as required by statute.
Although undue influence is not an issue before us, a recitation of some of the facts relating to the health of the decedent and to his family relationships is in order to understand the significance and the importance of the acts surrounding the execution of the decedent's last will and testament.
The testator was 88 years old at the time of his death on November 5, 1954. Dora Hale was his second wife of some 20 years and was herself 70 years of age. They got along as well as many married couples and there never was any serious trouble between them. It was understood between them both for many years that if the decedent died first the house they lived in was to go to Mrs. Hale. He even made such declarations of his intentions to others.
The decedent knew that Mrs. Hale had an independent income of about $2,000 per year. Just one month before he died, he asked his wife whether $4,000 would be sufficient
for her financial support. He did not indicate whether he was talking of a sum in gross or yearly, but when Mrs. Hale said, "That will be ample," the decedent replied, "Well, that's taken care of."
By the terms of his will Mrs. Hale was given a conditional life estate in the house. If she remarried or moved out of the house during her lifetime her estate in the property would cease, as would the $35 maximum payment to her per month for taxes on the house. The only other bequest to Mrs. Hale was a one-third part of whatever moneys the decedent left in savings accounts after the payment of debts and funeral expenses. No definite reference is made in the record to the exact amount of this bequest. The balance of the estate was to be divided in substantially equal portions between the decedent's two sons.
The decedent was physically debilitated. Prior to his last illness his eyesight was very poor. He could only just about see enlarged objects. Consequently, it was impossible for him to read without the aid of a strong magnifying glass and even then he could not read well. No one appears to have seen the old man do any reading during the last ten months of his life except Benjamin Hale, who said that his father read the propounded paper with the aid of his magnifying glass.
The attending physician who treated the decedent for more than four years prior to death was of the opinion that mentally the decedent was quite normal; that he was not the type of man who might be coerced or influenced by any person; and that even during his extreme physical weakness while in the hospital in June 1954 he was remarkably alert.
In February 1954 the decedents last illness began. It resulted in his confinement to the hospital for ten days in the latter part of June 1954. From all that appears the will in issue was executed just prior to such confinement. Thereafter he grew progressively weaker and was confined to bed in August 1954 until November 5, 1954, the day he died.
Benjamin Hale says that he consulted Louis B. Zavin, his father's attorney, in March or April 1954, about the preparation of a will for his father. This, he says, was done at his father's request. All of the transactions concerning this will were between Benjamin and the lawyer. When the draft was finished it was sent to Benjamin, who claims he took it to his father for approval. When the final will was prepared it was sent to Benjamin, who says he again took it to his father and left it with him for two or three days.
Mr. Zavin never discussed the contents of the will with the decedent. Benjamin Hale told him that his father was too ill to come to the office and that it was not necessary for the lawyer to see the father. Zavin testified that it was Benjamin who suggested a change in the first draft of the will that would make Mrs. Hale's life estate in the decedent's house conditioned upon her actual residence there. Zavin also indicated that no one made any arrangements with him to have the will executed and he did not learn of the execution of the will in his office until the day after it had taken place. His secretary, Carrie Reuter, recalls that Benjamin called her the morning of the day the will was signed and made an appointment to have the will executed in the afternoon.
On the day the will was signed, June 17, 1954, the decedent told his wife that he wanted to go down to his office. She helped him get dressed, but he never said anything to her about his intention to execute a will. Benjamin called for his father and brought him to the attorney's office. When they arrived he said his father had the will in his hand and declared to Mrs. Reuter "we have come to take care of this will." He agrees that the other witness, Mrs. Pell, was not present at that time.
The testimony of the two subscribing witnesses is not without equivocation. Mrs. Reuter, Mr. Zavin's secretary, who officiated at the signing of the will in her employer's absence, indicated that there were four persons present at the signing -- the decedent, Mrs. Celia Pell, Benjamin Hale and herself. Her specific testimony with respect to the publication and declaration by the testator follows:
Direct examination by Mr. Kremer:
Q. Now, did you declare in front of Mr. Hale, did you mention that this was his will? A. No.
Q. What did you say? A. Well, we didn't say anything because he was weak when he came in, and Mr. Hale had the will for two or three weeks. When he came in we just simply signed it.
Q. And didn't you ask Mrs. Pell to be a witness? A. Yes, that I did.
The Court: Who asked you to sign?
The Witness: Nobody, I was the secretary, and it was my duty when Mr. Zavin was out to do those things."
Examination by the Court:
"Q. Who signed the will first? A. Mr. William Hale. * * *
Q. Where were you when you asked Mrs. Pell to sign as a witness? A. Just standing there beside him.
Q. Did he say anything when you asked her; did the deceased say anything? A. You mean, the old gentleman?
Q. Yes. A. No, he was just given the pen and told where to sign; showed the place and that's what he did."
Cross examination by Mr. Kessler:
"Q. And was anything said to William Hale about the paper that he was signing being his will? A. No. I just took it for granted that it was his son, and the father knew what it was.
Q. Did either William Hale or Benjamin Hale say anything when the will was executed? A. No.
Q. Did you tell William Hale that it was his will? A. No.