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In re Probate of

Decided: May 28, 1957.


Clapp, Jayne and Francis. The opinion of the court was delivered by Clapp, S.j.a.d.


Appeal is taken from a judgment of the Mercer County Court, admitting to probate the will of Frank E. Shuler, dated September 29, 1948, as originally typewritten, that is, without certain interlineations and cancellations appearing in pen on the will. The case involves the so-called doctrine of dependent relative revocation, or, as it might better be termed, the doctrine governing revocations made on condition or under a mistake.

The testator died April 29, 1956, a resident of Hamilton Township in the County of Mercer. The parties apparently agree that the will was in his possession at his death, altered as above stated, and with the following notation appearing at the end of the will:

"Changed by me this 11th day of Jan. 1956. Frank E. Shuler."

It is to be inferred from the face of the instrument, read with this notation, that the alterations were not of a tentative character and, moreover, that they were all made at the same time. It also may be inferred that the testator thought they were legally effective. After making the changes, he did not again execute the will.

By the second paragraph of the will as originally written the testator gave his estate to his wife or, if she predeceased him (as she did), then to "my niece [in fact, she was his wife's niece] Marguarette Crawford Morris," and if Mrs. Morris also predeceased him, then to "my niece [another niece of his wife] May Stewart" of Trenton, or if these three persons predeceased him, then to his heirs and next of kin. On January 11, 1956 the testator heavily deleted the name of Mrs. Morris, and struck out the word "niece"; above these words, he interlined the words "grandniece Dorothy Trossbach" of Princeton, a daughter of Mrs. Morris. Obviously his intention was to make Dorothy the beneficiary of the estate in lieu of her mother. He also heavily deleted the words "my niece, May Stewart," but interlined no name in substitution for it.

In the fourth paragraph of the will, as originally typed, he appointed his wife executrix, or in case of her death or upon other contingencies, then Mrs. Morris, or in case of the latter's death also or upon other contingencies, then May Stewart. The three names, those of the wife and of the two nieces, were obliterated, and Dorothy Trossbach's name was interlined above that of the wife and also above that of Mrs. Morris.

As above stated, the testator's wife predeceased him, but her two nieces and grandniece, Dorothy, all survived him. Under the will as probated by the County Court Mrs. Morris takes the estate and will be the executrix. The appellants, testator's heirs and next of kin, are his two half-brothers, a half-sister, children of deceased half-sisters and a widow of one of these children, all resident in Montgomery, Pennsylvania.

The principal question raised by the appeal is whether the cancellation of the name of Mrs. Morris is rendered legally ineffective by the interlineation, at the same time, of the name of Dorothy Trossbach. It should be noted that no one contends that Dorothy takes. It may be noted, too, that although the judgment below apparently directs that May Stewart's name be restored to the will notwithstanding its deletion therefrom, still this is a matter of no consequence unless perhaps an application were ever made for the issuance of letters to her as a substituted executrix.

It is likely that the testator assumed that the purported gift to Dorothy was good, and hence that he intended to revoke the gift to her mother absolutely; it is quite improbable that he had in mind a condition, namely, that the revocation was to be ineffective if the gift to Dorothy failed. Therefore we are not dealing with a revocation made on condition. At most it may be inferred that the testator acted under a mistake -- a mistake of law (Warren, "Dependent Relative Revocation," 33 Harv L. Rev. 337, 344, n. 28 (1920); 1 Page, Wills 879 (3 d ed.)) -- as to the effectiveness of the gift attempted to be made in Dorothy's favor. In re Gorrell's Estate , 19 N.J. Misc. 168, 175 (Orph. Ct. 1941); Warren, supra , 337; but cf. Schneider v. Harrington , 320 Mass. 723, 71 N.E. 2 d 242, 244 (Sup. Jud. Ct. 1947).

Where such a cancellation is accompanied by an ineffective interlineation, both forming part of one transaction, the authorities in most jurisdictions automatically probate the will as originally executed. Annotations , 62 A.L.R. 1367, 1407 (1929), 24 A.L.R. 2 d 514, 556 (1952); Page, supra , 880, 881. See Smith v. Runkle , 97 A. 296, 304, 305 (Orph. Ct. , affirmed by Prerog. Ct. 1915), the third question in the case. However, as counsel have not observed, the decree disposing of this question was reversed, sub nom. Smith v. Haines , 86 N.J. Eq. 224, 229 (E. & A. 1916) (it might be helpful to add that Smith v. Runkle was affirmed for the reasons stated below ...

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