Price, Gaulkin and Sullivan. The opinion of the court was delivered by Sullivan, J.A.D.
[64 NJSuper Page 433] Plaintiff filed suit claiming that he and his late wife, Anna V. Staudter, had made an irrevocable agreement to dispose of their respective property by mutual and reciprocal wills. He charged that pursuant to the agreement he and his wife, on March 29, 1951, had executed such
wills, but that thereafter his wife secretly made another will eliminating plaintiff as beneficiary. He first learned of the later will, which named defendant as executrix and residuary beneficiary, after his wife's death. The suit asked for the imposition of a trust on the estate assets and an accounting. At the close of plaintiff's case the trial court granted defendant's motion to dismiss the complaint, on the ground that there was no proof of an agreement that the wills were to be "binding and irrevocable on either of the parties." Plaintiff appeals.
Plaintiff married Anna V. Staudter on May 17, 1930. The only child born of the marriage died shortly after birth. Plaintiff had for many years been in the building and contracting business with offices in Dumont. In 1942 plaintiff, without receiving any monetary consideration therefor, conveyed a parcel of vacant land known as 72 Clarke Street, Dumont, to his wife. Thereafter plaintiff constructed a dwelling house on said property and he and his wife lived there for some years. He testified that the house and lot cost him $14,000, and that since 1942 he had spent $18,000 on taxes, maintenance, and improvements. Title to the property remained in Mrs. Staudter's name until her death.
Plaintiff testified that in 1949 he and his wife had a discussion about making their wills and, "after knowing what we wanted to do," went to a lawyer's office and executed mutual and reciprocal wills. These wills did not contain any provisions for contingent beneficiaries. The attorney who drew the wills testified that plaintiff and his wife had directed him to prepare wills whereby each left everything to the other. He said that he advised them that since they had no children they should consider a provision as to what would happen to their estates in the event they both died in the same accident. He was told however that "this was the way they wanted it"; consequently the wills were prepared as directed and executed by plaintiff and his wife.
Plaintiff also testified that in 1951 he and his wife had a further discussion relating to their wills and as a result
went to another lawyer and had new wills drawn by which each not only left everything to the other but also provided that in the event that they died at the same time, or in a common accident, or the one named as beneficiary predeceased, then the estate was to be distributed among specified beneficiaries. The same persons were named as contingent beneficiaries in each will. Plaintiff asserted that these wills were prepared in accordance with the agreement he had made with his wife prior to going to the lawyer's office.
At the trial plaintiff's attorney made an offer to have plaintiff testify as to the details of the agreement between plaintiff and his wife. On objection, however, the court excluded the proof as being testimony by a party to a transaction with a decedent contrary to N.J.S. 2 A:81-2. The case was tried April 13, 1960, the judgment entered April 28, 1960, and the notice of appeal filed June 10, 1960.
While the appeal was pending, and effective July 1, 1960, N.J.S. 2 A:81-2 was amended so as to eliminate the bar of a party's testifying to a transaction with a deceased. L. 1960, c. 52, Art. IV.
After the argument of the appeal, which was limited to a consideration of the sufficiency of the evidence presented at the trial, this court called counsels' attention to the statutory change pending appeal and posed the question whether, in the interests of substantial justice, plaintiff should not have the trial court now consider the testimony which had been previously excluded. We requested briefs on this issue and scheduled further oral argument.
As a result, counsel for defendant, with commendable candor, concedes that plaintiff is entitled to have the proffered testimony considered.
In the present case the particular statutory change involves the admissibility of evidence. It does not create new rights or affect vested ones. Therefore, while the trial court's ruling on the offer of proof was entirely correct when made, the law excluding such evidence having ...