Goldmann, Conford and Haneman. The opinion of the court was delivered by Conford, J.A.D.
This appeal presents questions concerning the sufficiency of the publication of a will and as to testamentary capacity of the testator. The trial court found in favor of the proponent of the will on both issues. The appellant-contestant is the widow of the decedent. An attorney appeared for respondents at the argument but, as is our practice, we refused permission to argue because no brief had been filed on their behalf.
The testator operated a tavern in Paterson. He died July 23, 1957, leaving as survivors his wife, Helen, and a nine-year-old son. The wife had another son by a previous marriage. She testified on her direct case that she had lived with decedent for some years on a "trial" basis before marrying him in 1953. Under the will offered for probate, which was executed December 18, 1956, the testator left
the tavern to his brother and brother-in-law "on the condition that the sum of $20.00 per week is to be put in trust" for the son. In the event of sale of the tavern, one-third of the proceeds was to be "put in trust" for the son. Principal and interest on the trust fund were to be advanced to the son at 25, or so much thereof, earlier, as might be required for a college education. The remaining real estate was to be divided between the brother and the son, and the residue of the estate to go to the son under the trust. Paragraph 3 of the will states that the wife, Helen, "shall have her dower rights in any real estate I own and nothing more."
We address our attention first to the question as to the sufficiency of the publication of the will.
We note at the outset that the attestation clause of the will is defective in that it omits any reference to the document as having been declared by the testator to be his last will and testament. The will was drawn for the testator by Jacob G. Goldfarb, an attorney-at-law who is also secretary to the Receiver of Taxes and Assessments of the City of Paterson. He gave the following testimony relative to its execution and publication. The decedent "dictated" the will and Goldfarb "had it drawn up." When the draft of the will had been prepared, the testator came to the city tax office, the lawyer read it to him, and the testator then read it himself. He told Goldfarb he was satisfied with it and signed it in the presence of Goldfarb and the other attesting witness, Mrs. Olga Fitzpatrick, a clerk in the tax office. The execution of the will took place in the morning, soon after the tax office opened. Before the testator signed the will Goldfarb introduced Mrs. Fitzpatrick to him, said, "This is the last will and testament of Mr. Petkos," and asked her to be a witness. At the time Mrs. Fitzpatrick was sitting at her desk, three yards from the 36-inch counter where Goldfarb and the testator were standing, Goldfarb
behind the counter and the testator in front of it. Thereupon the decedent signed the will, after which Goldfarb and Mrs. Fitzpatrick signed it in his presence.
Mrs. Fitzpatrick, called as a witness, identified her signature on the will and that of Goldfarb. She said she recognized the testator's signature on the will. She testified she was present when Petkos signed his name and that both Petkos and Goldfarb were present when she signed her name. She further stated that Mr. Goldfarb had said in the "sight and hearing" of herself and Petkos, that this document "was the last will and testament of this Mr. Petkos." On cross-examination, Mrs. Fitzpatrick testified that at the time of the signing of the will and the attestation clause all three of the persons mentioned were standing at the counter and the signing took place at the counter. She confirmed Goldfarb's testimony as to her introduction to Petkos, the identification of the paper as the will of Petkos and the request that she be a witness. She said she answered Goldfarb that she would be a witness. All signed, but she did not remember in what order. They "all signed watching one another." Petkos said nothing.
The position of the defendant, essentially, is that the foregoing proofs do not constitute sufficient evidence of conformity with the statutory requirement that the will be declared to the subscribing witnesses by the testator to be his last will and testament; in other words, published to them by the maker of the testament. In re Hale's Will , 21 N.J. 284 (1956). The lack of a perfect attestation clause places the burden of proof on the proponent of the will to establish by positive proof all of the statutory requisites, including publication. In re Abbott's Estate , 1 N.J. Super. 298, 300 (App. Div. 1949). The cases dealing with the statutory requisite of declaration or publication of a will (N.J.S. 3 A:3-2) are dealt with at length in In re Hale's Will, supra. But the ...