On certified appeal to the Appellate Division of the Superior Court from the Probate Division of the Essex County Court.
For affirmance -- Chief Justice Weintraub, and Justices Heher, Wachenfeld, Burling, Jacobs, Francis and Proctor. For reversal -- None. The opinion of the court was delivered by Heher, J.
At issue here is the testamentary efficacy of an instrument purporting to be a codicil, duly executed according to law, which appoints an executor of the maker's last will and testament theretofore made and revokes the nomination of the executor therein named, and modifies and amends the will accordingly but otherwise "confirm[s], rati[fies], redeclare[s] and republish[es]" the prior testamentary disposition. The stated question, res nova in New Jersey, is whether the codicil is "entitled to probate and the named Executor entitled to qualify, in the absence of the production of the Will itself," on the hypothesis that the operation of the codicil is "necessarily dependent" upon the subsistence and probate of the will itself.
The maker of the codicil died September 22, 1957, domiciled in Montclair, Essex County, New Jersey. The heirs at law and next of kin of the deceased comprise Stanley Sapery, nephew and nearest of kin, and certain greatnephews and great-nieces.
On October 4, 1957 Dr. Maurice Cohen, designated as executor in the codicil, a cousin of the deceased, interposed a caveat in the Essex County Surrogate's Court against the issuance of letters of administration or letters testamentary upon the estate of the deceased, inasmuch "as said decedent left a Codicil to a Will on which the [caveator] is named as Executor," and the will has "not as yet been located"; and on October 16 ensuing the deceased's nephew, Stanley Sapery, filed a caveat against the admission to probate of any paper writing purporting to be the will of the deceased, accompanied by a complaint for administration affirming that the deceased died intestate and praying that letters of administration be issued to him. There were countermotions to dismiss the caveats: Stanley Sapery moved to strike Dr. Cohen's caveat on the ground that "no will [of the deceased] has been found," and he, the movant, had first right to administer the estate; Dr. Cohen moved to strike the Sapery caveat to the end that the "validly executed" codicil be admitted to probate. This stipulation
was made at a pretrial conference: "No Last Will and Testament of decedent has been uncovered and none was known to be in existence at the time of his death."
There was judgment admitting the codicil to probate and directing the issuance of letters testamentary to Dr. Cohen "as executor of [the deceased's] estate"; and the case is here by our certification, sua sponte, of Stanley Sapery's pending appeal to the Appellate Division of the Superior Court.
The argument has two facets: (a) a testamentary instrument which "does not dispose of property," but "merely appoints an executor" is not entitled to probate; and (b) a codicil "which depends upon a prior executed Will for its effectiveness" cannot be probated "if the Will itself is not produced."
But there is no reason in principle, either at the common law or by statute, why a "testamentary instrument" which "does not dispose of property," but merely nominates an "executor," should not be admitted to probate for the fulfillment of the maker's testamentary design. It is essentially a matter of intention; and it is fundamental in the social compact that one may make such provision as he choses for the distribution of his property after death, provided it is not contrary to positive law or public policy. The English statute of distributions, long recognized by historical scholars as founded on the 118th Novel of Justinian, is now thought to have had its "logical and immediate origin in the sequence of ancient customs of English-speaking peoples, as those customs were established in the reign of Charles II; but more particularly in the ancient practice of the ecclesiastical courts in granting letters of administration," Palmer v. Allicock, 3 Mod. 58, 87 Eng. Rep. 37 (1684), 2 Williams' Adm'rs & Ex'rs (1838 ed.) 1060, customs and practice, it is suggested, that "in some respects [may] go back * * * to a time anterior to even the legislation of Justinian." In re Youngs, 73 Misc. 335, 132 N.Y.S. 689 (Surr. Ct. 1911).
Regulating succession or inheritance ab intestato is a legislative province. The Legislature has plenary power over the devolution of the title and the distribution of the intestate's property; and yet, presumably, the rules of descent and distribution are in accord with the intestate's intention, for the statutory intestate disposition may be defeated by the will of the owner of the property, if he possesses testamentary capacity; intestacy signifies the adoption of the legislative disposition, a conclusive presumption, although necessarily fictional in some cases: e.g., the making of a will that cannot be probated for defect of execution as laid down in the statute; or the invalidity or unenforceability of provisions intended to dispose of the property. In re Holibaugh's Will, 18 N.J. 229 (1955). And compare McCormick v. Hall, 337 Ill. 232, 168 N.E. 900, 66 A.L.R. 1062 (Sup. Ct. 1929). See Van Tilburgh v. Hollinshead, 14 N.J. Eq. 32 (Ch. 1861); Quick's Executor v. Quick, 21 N.J. Eq. 13 (Ch. 1870); Kennedy v. Kennedy, 29 N.J.L. 185 (Sup. Ct. 1861); Swetland v. Swetland, 100 N.J. Eq. 196 (Ch. 1926), affirmed in part 102 N.J. Eq. 294 (E. & A. 1928).
Blackstone said, of the origin of testaments and administrations, that when property came to be vested in individuals by the right of occupancy, it became necessary for the peace of society that this occupancy should be continued, not only in the present possessor, but in those persons to whom he should think proper to transfer it, and thus came the introduction of the doctrine and practice of alienations, gifts, and contracts, "precautions [that] would be very short and imperfect, if they were confined to the life only of the occupier; for then upon his death all his goods would again become common, and create an infinite variety of strife and confusion," and so the "law of very many societies has therefore given to the proprietor a right of continuing his property after his death, in such persons ...