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In re Probate of Will of Rasnick

Decided: November 8, 1962.

IN THE MATTER OF THE PROBATE OF THE ALLEGED WILL OF NATHAN N. RASNICK, DECEASED


Matthews, J.c.c.

Matthews

Nathan A. Rasnick died a resident of Essex County, New Jersey, on June 14, 1961. On June 28, 1961, there was presented for probate an alleged last will of decedent dated December 10, 1948. A judgment admitting this will to probate was entered by the Surrogate on June 28, 1961. On July 12, 1961 an appeal was taken from said judgment and the matter was brought before this court for disposition.

At the hearing on the appeal, inspection disclosed that the will admitted to probate provided for the disposition of decedent's entire estate among his three sisters with certain other dispositions to members of his family which are not pertinent here. At the time of his death, decedent left surviving him a widow, the appellant Pearl Rasnick, whom he had married during the spring of 1955. The widow sought to prove a subsequent document purporting to be a later will of the decedent. There was proffered on her behalf a carbon copy of the alleged will which was dated April 21, 1959. Under this writing, all of decedent's estate was left to his widow. The reason for the production of a carbon copy of the will (which was conformed) was given as follows:

On April 22, 1959, decedent and his wife appeared at the law offices of Jennie E. Precker, a member of the bar of this State, who was the scrivener of the alleged will dated April 21, 1959. The visit to the law office had been forewarned by a telephone call to Miss Precker on the evening prior to the visit. Upon arrival at the office, decedent and his wife were admitted to Miss Precker's office, and she handed the original

of the alleged will to the widow. The widow thereupon took the will out of its envelope and, suddenly, in a fit of temper, tore the signature portion of the last page off the document and handed the remainder of the will to her husband, saying substantially, "here is your signature, show it to your sisters." Shortly thereafter, both decedent and his wife left the office.

I.

The sisters of decedent who would benefit under the first will (hereinafter referred to as respondents) objected to the production and offer of the carbon copy of the alleged subsequent will claiming that such proof is prevented by the rule of evidence which bars one who voluntarily, without mistake or accident, destroys primary evidence, from producing and using secondary evidence to prove that which was destroyed. It is claimed on behalf of respondents that this broad rule should be applied by me here, and in support of this argument there is cited to me the opinion of Chancellor Green in Wyckoff v. Wyckoff , 16 N.J. Eq. 401, 402 (Ch. 1863). At the hearing, I overruled the objection of respondents stating my reasons for such action on the record. In the interest of clarity and to document that ruling, I deem it advisable to set forth reasons in support of my ruling herein.

The rule cited by respondents seems to have first come into our jurisprudence in the case of Broadwell v. Stiles , 8 N.J.L. 71, 3 Halsted 58 (Sup. Ct. 1824). Broadwell v. Stiles involved an action on a promissory note. Stiles had in his possession a note drawn in his favor by a third party. Broadwell had received the proceeds of the note, the same having been endorsed, it was claimed, to him by Stiles. At the trial, Stiles sought to prove that the endorsement made by him was a forgery. When the note was produced, it appeared that the endorsement had been erased, admittedly by Stiles. The trial court had permitted testimony as to the alleged forgery. On the appeal, the former Supreme Court ruled that the admission of such testimony was erroneous and stated in support of

such holding that he who voluntarily, without mistake or accident, destroys primary evidence thereby deprives himself of the production and use of secondary evidence. In applying this rule, the former Supreme Court observed that Stiles by defacing the allegedly known genuine signature effectually deprived Broadwell of the benefit of witnesses acquainted with the handwriting of Stiles, who if they had seen and examined the signature might well have satisfied the jury that the evidence produced by Stiles was untrue. The court further observed that to admit the evidence under such circumstances is as repugnant to principles as to deny a party the cross-examination of the witnesses of his adversary.

In Wyckoff v. Wyckoff, supra , the court was faced with a problem involving the destruction of the only copy of a last will of the decedent there involved. It appeared that decedent who was a female had certain property which she had derived from her father many years prior to her death. The gift to the decedent provided that if she died without issue, her unexpended share of the bequest was to go over to his surviving children. Some years after her father's death, decedent executed a will under which she made defendant her sole executor and residuary legatee. Thereafter, decedent died without issue. Immediately following decedent's death, her property was claimed by the executors of her father as being part of his estate under the limitation which he had made under the gift to his daughter. It was the legal opinion of consultants to defendant that the action of the father's executor was correct. Defendant became convinced that his decedent, therefore, had no property to dispose of by her will since all of her property had reverted to her father's estate. While under this belief, he destroyed the will in question. The Chancellor was satisfied beyond controversy that the will was destroyed by defendant under the honest belief that the testatrix had no right to dispose of the property.

In referring to the rule as laid down in Broadwell v. Stiles, supra , the Chancellor stated, (16 N.J. Eq. , at p. 402):

"The mere proof of the loss or destruction of an instrument does not, as a matter of course, let in the party to give secondary evidence of its contents. 'He who voluntarily, without mistake or accident, destroys primary evidence, thereby deprives himself of the production and use of secondary evidence.' Broadwell v. Stiles , 3 Halst. R. 58.

If the destruction was accidental, or if it occurred without the agency or assent of the party offering it, secondary evidence is admissible. But if the instrument was voluntarily destroyed by the party, secondary evidence of its contents will not be admitted, until it be shown that it was done under a mistake, and until every inference of a fraudulent design is repelled. * * *" (Citations omitted.)

He then went on in his opinion to apply the rule to the facts of the case before him in this manner (16 N.J. Eq. , at p. 404):

"* * * It is proved past all controversy, that the will was destroyed by the witness under the honest belief that the testatrix had no right to dispose of the property, and that consequently the will was worthless. Nor is there any rational ground to infer any fraudulent purpose in the destruction of the will. The party by whom it was destroyed is the executor of the will, and the legatee of a large portion of the estate. He was not one of the next of kin of the testatrix, and could gain nothing by her intestacy. There is a suggestion in the testimony of one of the witnesses, that the will might have furnished some evidence of the amount of property in the hands of Wyckoff, and that this was the real motive of its destruction. The answer to this suggestion is, that the will of the testatrix could furnish no competent evidence of the amount of her property in the hands of her agent, he not being the scrivener; much less could a will, made in 1853, furnish any competent evidence of the amount of her ...


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