Goldmann, Freund and Conford. The opinion of the court was delivered by Freund, J.A.D.
The question raised by this appeal is whether or not a bequest of "all of my personal belongings and wearing apparel" includes a 1955 Cadillac automobile.
Isaac Hoffman, a widower, died in California on March 21, 1957. His will, executed on August 1, 1955, bequeathed all his personal belongings and wearing apparel to a cousin, Dr. Yaschi Paii. The residue of the estate was given in trust for the education of two infant relatives, the trust to terminate upon their attaining the age of 21 years. The mother of the residuary legatees was appointed trustee and
directed to post a $10,000 bond. Upon the executor, Henry J. Bendheim, was conferred the power to sell realty and dispose of personalties.
Before leaving for California, the decedent had delivered his Cadillac to Dr. Paii for his use and enjoyment during the owner's absence. By agreement, the car has been sold at a public sale for $2,250; the proceeds are being held in a special account, to be disposed of in accordance with the further order of the court.
The matter was heard by the Bergen County Court, Probate Division. The opinion of the trial judge, after reciting that the testator lived alone and had no household goods excepting such as a single man requires, was that Hoffman had intended that Dr. Paii should receive the Cadillac as a "personal belonging." Accordingly, a judgment was entered, from which the guardian ad litem of the residuary legatees appeals.
The appeal has been submitted to this court upon a "Statement of Evidence and of Proceedings," signed by the attorney for the executor, the guardian, and Dr. Paii's attorney, and approved by the trial judge, pursuant to the provisions of R.R. 1:6-2. The statement recounts that Bendheim, an attorney, testified that he had prepared the will on August 1, 1955, at which time a prior will of the testator was destroyed; it concludes by stating that both Dr. Paii and Joseph H. Johnson, Hoffman's landlord, testified that Dr. Paii and his wife had been "extremely attentive to decedent for many years prior to his death -- visiting and ministering to his needs regularly at his residence in Englewood."
Considering only the information that appears in the agreed statement of evidence, and particularly that relating to the attentiveness of Dr. Paii and his wife to the testator's needs, and the fact that the decedent had, shortly before his death, entrusted the car to Dr. Paii, we would be inclined to agree with the trial judge's conclusion that Hoffman had intended the automobile to be included in the bequest of his "personal belongings" to Dr. Paii. Nevertheless, the appellant's brief contains certain information bearing on
the assets of the estate, and his appendix includes the entire stenographic transcript of the testimony given by Bendheim, the lawyer who drew the will in question, containing proof beyond the content of the agreed statement. A motion was made at the oral argument to enlarge the record on appeal to include this testimony. For reasons later herein to be stated, we are granting this motion.
The witness Bendheim testified that he had drawn a previous will about two years prior to the will which was probated. The second will, which he also drew, was drawn approximately two weeks after the death of Hoffman's second wife. The witness was asked what difference there was in the wording of the two wills. He had no copy of the first will and testified solely from his own recollection and certain notes prepared by his secretary. Bendheim testified:
"Well, from my recollection and notes, Mr. Hoffman came to my office to change his Will because in the first Will that he drew he had specifically given his car to this Doctor Paii, and he wished that to be changed and, as a result, I ...