Elizabeth McDougal (McDougall), also known as Bessie McDougall, died on May 23, 1957, a resident of Los Angeles, California. She had resided in the State of California continuously for about 19 years up to the time of her death. Prior thereto the decedent was a resident of Dover, New Jersey, the place of her birth. She had never married. Her surviving next of kin and heirs at law are a brother Ezra, and several nephews and nieces, children of her brothers Walter and Robert, who predeceased her.
During her domicile in New Jersey Elizabeth executed a will dated April 27, 1935. The will was prepared for her by a New Jersey attorney and purports to make disposition of all her real and personal property. There was also found among her effects a holographic will dated April 4, 1956, executed by Elizabeth in California. The holographic will in its entirety is as follows:
"I Elizabeth McDougall of the City of Los Angeles and State of California.
"Declare this to be my last will & testement.
"1st I order & direct my Executors to pay all my just debts and funeral expenses as soon as convenient after my decase
"2nd I am leaving my Brother Ezra McDougall One dollar for the reason he received his share from my fathers estate that was turned over to me. by my Brothers Robert & Walter now decase
"3rd I am leaving property at 11-E Munson Ave to be sold & divided equal to my Brothes children Robert & Walters.
"Elizabeth McDougall L.S."
At the time of her death, decedent was the owner of the real property situate at 11 East Munson Avenue, Dover, New Jersey, the subject matter of the holographic will.
Her brother Ezra, a resident of Dover, was apprised of the April 4, 1956 document. He was unaware of the existence of the original April 27, 1935 will, having knowledge only of a copy of said will. He filed a complaint in this court, challenging the validity of the 1956 instrument under the New Jersey law, there being no subscribing witnesses or any attestation. His complaint alleges that in addition to the Dover realty decedent left personal property in the State of New Jersey in the approximate amount of $2,500, and personal property in the State of California in the approximate amount of $670. He further alleges that said document may be valid in the State of California, but invalid to pass real estate situate in New Jersey. He demands judgment admitting said will to probate, that he be appointed administrator cum testamento annexo , and that this court render a declaratory judgment setting forth the effect of this document upon the personal and real property of the decedent. No proceedings have been taken for the probate of the holographic will in California, and it has not been admitted to probate in that state.
Subsequent to the filing of Ezra's complaint, the original will of Elizabeth dated April 27, 1935 was discovered. In this will the testatrix appointed her brothers Walter and Robert (who predeceased her) as executors. Walter, a nephew of the testatrix and son of her deceased brother Walter, thereupon filed a complaint alleging that no proceedings for the probate of the said will are pending in the State of California, nor has said will been admitted to probate in that state. He demands judgment that said will be admitted to probate and that letters of administration cum testamento annexo be granted to him. The formal New Jersey will purports to devise a life estate in the specific real property at Dover to her brother Walter, and the remainder to her nephews Walter and Vincent, the sons of her brother Walter (to the exclusion of her late brother, Robert's children).
The two proceedings were consolidated for hearing. At the oral argument, counsel agreed that ...