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In re Probate of

March 16, 1959

IN THE MATTER OF THE PROBATE OF THE ALLEGED WILL OF ELIZABETH MCDOUGAL (MCDOUGALL), ALSO KNOWN AS BESSIE MCDOUGAL (MCDOUGALL), DECEASED, IN THE MATTER OF THE ESTATE OF ELIZABETH MCDOUGALL, A/K/A BESSIE MCDOUGALL.


Before Judges Price, Schettino and Gaulkin.

Per Curiam. The judgment is affirmed for the reasons stated by Judge Mintz in his opinion, reported in 49 N.J. Super. 485 (Cty. Ct. 1958). See also Fidelity Union Trust Co. v. Ackerman, 123 N.J. Eq. 556 (E. & A. 1938); 11 Am. Jur. Conflict of Laws § 96, p. 384; Annotation 43 A.L.R. 2 d 569, 571, 596.

SCHETTINO, J.A.D. (dissenting). I am unable to agree with the majority. In order to facilitate an understanding of my views I am setting forth the history of this litigation.

Appeal is from a judgment of the County Court, Probate Division, denying appellants' claim that a certain California holographic will brought about an equitable conversion of decedent's real estate located in New Jersey and passed it under that will as personalty, and holding that the holographic will passed only personalty and that a prior formally valid New Jersey will passed title to the real estate.

The testatrix, Elizabeth McDougal (McDougall), also known as Bessie McDougal, died on May 23, 1957 at the age of 71, a resident of California continuously for the last 19 years of her life. Prior thereto she had lived in Dover, New Jersey, the place of her birth. She never married, and left her surviving a brother and the issue of two deceased brothers. Her estate consisted of a one-family house in Dover, New Jersey, and personal property in this State amounting to about $2,500 and in California amounting to $670.

During her lifetime decedent executed two wills: a formal will, dated April 27, 1935, executed in New Jersey in accordance with its laws; and a holographic will, dated April 4, 1956, executed in the State of California in compliance with California law but not with New Jersey law.

Ezra McDougal, a brother of decedent, filed a complaint seeking his appointment as administrator, or administrator cum testamento annexo of Elizabeth McDougal's estate. He alleged that decedent left the holographic document, purporting to be her last will and testament and demanded judgment (a) admitting the holographic will to probate and granting him letters of administration with will annexed; (b) determining its effect upon the real property as well as the personal property of the decedent situated within New Jersey, and, (c) determining its effect upon the personal property of decedent situated in California.

The holographic will, in its entirety, is as follows:

"April 4 -- 1956

"I, Elizabeth McDougal of the City of Los Angeles and State of California.

"Declare this to be my last will & testament.

"1st I order & direct my Executors to pay all my just debts and funeral expenses as soon as convenient after my decase [decease].

"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 [deceased]

"3rd I am leaving property at 11-E Munson Ave. to be sold & divided equal to my Brothers children Robert & Walters.

"Elizabeth McDougall L.S."

Thereafter, Walter F. McDougal obtained an order to show cause why the New Jersey will should not be admitted to probate and why letters of administration cum testamento annexo should not be issued to him. This will devised a life estate to testatrix' brother Walter, and the remainder to her nephews Walter and Vincent, sons of her brother Walter, and to the exclusion of her brother Robert's children.

The trial court outlined the issues involved in its opinion:

"Robert's children object to the probate of the 1935 will and contend that only the holographic instrument should be admitted to probate. The issue is whether the Dover property is devised pursuant to the formally executed New Jersey will in 1935, or does the property, or the proceeds from the sale thereof, pass in accordance with the 1956 California holographic will.

Robert's children concede the insufficiency of this document to effectively devise realty in New Jersey, but contend in brief that this instrument contains a direction to sell the property and divide the proceeds. As a result of this direction, they assert that the principle of equitable conversion applies, that is, the real property is deemed personalty and the instrument, being valid to pass personalty in the State of California, where decedent was domiciled, is likewise valid to pass personalty (the proceeds from the sale of the Dover property) in New Jersey."

The trial court held that the California holographic will was ineffective to devise real estate in New Jersey because N.J.S. 3 A: 3-2, provides:

"* * * a will to be valid shall be in writing and signed by the testator, which signature shall be made by the testator, or the making thereof acknowledged by him, and such writing declared to be his last will, in the presence of 2 witnesses present at the same time, who shall subscribe their names thereto, as witnesses, in the presence of the testator."

The court further held that (1) the instrument was likewise ineffective to revoke a prior valid devise as the purported revocation did not comply with the provisions of N.J.S. 3 A: 3-3 in that it was not executed in the same manner in which wills are required by law to be executed; (2) whether an equitable conversion was effected by the will was to be determined by the law of the situs of the real

estate, i.e., New Jersey; and (3) under the case law of this State such equitable conversion could not be effectuated by the holographic will. The court relied on In re Winter's Estate, 24 N.J. Misc. 167 (Orph. Ct. 1946) and Jenkins v. Guarantee Trust & Safe Deposit Co., 53 N.J. Eq. 194 (Ch. 1895), reversed, 53 N.J. Eq. 200 (E. & A. 1895). It declared that the fiction of equitable conversion must not be employed:

"* * * where the consequence is circumvention of a basic principle of law. Simply stated, Elizabeth McDougal could not make the conversion without exercising dominion over the land. She was obliged to exercise that dominion in accordance with New Jersey law. The holographic instrument does not comply with such law, and does not make a legally effective disposition of the Dover real property. It therefore cannot be admitted to probate for such purpose."

However, the trial court admitted the holographic will to probate "limited in application to the personalty of the testatrix situate in New Jersey at the time of her death," and also admitted the New Jersey will to probate, holding that it governed the disposition of the New Jersey real estate.

Appellants are the children of Robert McDougal, a deceased brother of the decedent. Respondents are Walter F. and Vincent McDougal, sons of Walter McDougal, Sr., another brother.

On this appeal the appellants argue that the California will, valid in the state of decedent's domicile, subsequent in time to the New Jersey will and inconsistent with it, effectively revoked the New Jersey will. They further contend that the holographic will converted the New Jersey realty into personalty so that it worked a bequest of legacies and not a devise of realty. They argue that as the holographic will converted the property into personalty, the requisite formalities of the lex domicilii are governing.

I emphasize the principles that effect should be given to a will wherever possible, In re Pistor's Estate, 53 N.J. Super. 139, 147 (App. Div. 1958); Greene v. Schmurak, 39 N.J. Super. 392, 400 (App. Div. 1956) certification denied 21 N.J. 469

(1956), and that a will should be so construed as to be upheld if possible and that the intent of the testator should be effectuated. Watson v. Brower, 24 N.J. 210, 218 (1957); Ferguson v. Rippel, 23 N.J. Super. 132, 138 (App. Div. 1952); 5 N.J. Practice (Clapp, Wills and Administration), § 108, p. 251 (1950).

I agree with the majority that there is no merit to appellants' contention that the California will worked an effective revocation of the New Jersey will insofar as the New Jersey realty is concerned. N.J.S. 3 A: 3-3, N.J.S.A., provides in part, that:

"No written will, or any devise or bequest therein, or any clause thereof, may be revoked except by:

b. Another will or codicil in writing revoking or altering the same, or other writing declaring the revocation executed in the manner in which wills are required by law to be executed. " (Emphasis added.)

and is dispositive. The "revocation of a duly executed will and testament can be had only in the mode and manner ordained by the statute." In re Sapery's Estate, 28 N.J. 599, 609-610 (1959). See also Restatement, Conflict of Laws, § 250. Generally, the New Jersey will remains in full force and effect in regard to any real estate owned by decedent in this State. However, the California holographic will is operative as to decedent's personal estate, wheresoever situated.

I next consider appellants' contention that the holographic will converted the realty so that it became personalty and thus passed as personalty under that will. In Guaranty Trust Company of New York v. Stevens, 28 N.J. 243, 257 (1958) Mr. Justice Heher stated the general rule that:

"* * * the validity of bequests of personalty depends upon the law of the testator's domicile, and such a will executed according to the lex domicilii is operative upon personal property wherever situate. This is according to reason and logic, if not indeed constitutional principle. Nelson v. Potter, supra [50 N.J.L. 324 (Sup. Ct. 1888)] See 5 N.J. Practice (Clapp, Wills and Administration), pp. 74, 214 and 1956 Supp. 94, n. 9."

The validity of a devise of real property is governed by the law of the situs. United States v. Crosby, 7 Cranch 115, 116, 11 U.S. 115, 116, 3 L. Ed. 287 (1812); Kuiken v. Simonds, 3 N.J. 480 (1950).

As I view the problem it is simply stated to be: Did the holographic will effectively convert the New Jersey real estate into personal property and thereby permit it to pass as personalty; or does the fact that the will is formally invalid to pass real estate in this State prevent the conversion and the passing of the real estate as personal property? The general rule is that the law of the state wherein the real property is situated, and not the law of the state of the testator's domicile, determines whether real property is, by the terms of the will, to be treated as equitably converted. Goodrich, Conflicts of Law (3 rd ed.) § 167, p. 509. In Kuiken, supra (3 N.J. at page 486) Mr. Justice Case thoroughly reviews the doctrine of equitable conversion, stating:

"The general rule has long been recognized in this state that where land is directed to be converted into money by the executors and the proceeds distributed in a manner designated by the testator, such proceeds are to be regarded as gifts of money and not as devises of real estate. Triplett v. Ivins, 93 N.J. Eq. 202, 204 (E. & A. 1921).

The time from which the conversion takes effect, like all other matters of intention, depends upon the provisions of the particular instrument. But where there is an absolute direction to sell, conversion becomes effective from the death of the testator unless his intention appears to have been otherwise. [citations]

Subject to modification by intention, the generally accepted rule in this state is that when land is directed to be sold, absolutely and positively, it is considered as converted into money from the death of the testator, or if it is optional with the executor whether to sell or not to sell, or if it is only an authority to sell without any direction, then the land retains its character as land until it is actually sold; if the direction of the will as to the proceeds require a ...


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