For reversal -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For affirmance -- None. The opinion of the court was delivered by Haneman, J.
John Anthony Pope, Administrator c.t.a. of the Estate of Anthony (Anton) Popowitz, appealed to the Appellate Division pursuant to R.R. 4:88-8(a) from an assessment of inheritance taxes by William Kingsley, Acting Director, Division of Taxation, Department of the Treasury of the State of New Jersey (Director). R.S. 54:33-1 et seq., N.J.S.A. This court certified the appeal on its own motion before argument in the Appellate Division. R.R. 1:10-1(a).
On February 3, 1950 Anthony Popowitz executed a will (1950 will) in which he devised and bequeathed his entire estate to his wife, who predeceased him. Under the terms of the will, the entire estate was to vest in his son, John Anthony Pope, in the event his wife did not survive him.
In March 1958 decedent, then a widower, hired Florence Morrison as a housekeeper. He was over 70 years of age, allegedly senile, and illiterate. On April 1, 1958, less than a month after the employment of Morrison, decedent executed a new will (1958 will) in which he bequeathed $1,000 in trust for James Roberts, a minor, not related to the testator, and $1,000 outright to each of three grandchildren. The residue was devised and bequeathed to Morrison. Decedent died on May 11, 1958, a resident of Morris County.
On May 12, 1958 Pope filed a caveat with the Surrogate of Morris County against the admission to probate of "any paper writing purporting to be the will of Anthony Popowitz." Morrison, pursuant to an application to the Morris County Court, Probate Division, obtained an order to show cause, directed to Pope, why the 1958 will should not be probated, and why letters testamentary thereon should not be granted to her. R.R. 4:103-1(c); R.R. 5:3-1. The Director was not made a party to the proceedings.
The pretrial order of the County Court provided:
"1. This is a will contest. A caveat was filed in Surrogate's court, and the matter is now before this Court on order to show cause why the will should not be admitted to probate and letters testamentary
thereon issued to Florence Morrison, the executrix, hereinafter referred to as proponent.
2. Proponent contends that the said will of Anton Popowitz was legally executed in accordance with all statutory requirements and should be admitted to probate.
3. The caveator, John Anthony Popowitz, contends that the testator at the time of his death was over 70 years of age and senile and consequently lacked testamentary capacity. He further contends that the proponent, Florence Morrison, practiced fraud and undue influence in that she was hired as a housekeeper for the testator in March of 1958, at which time he was bedridden and mentally incompetent. Testator was illiterate and the proponent, Florence Morrison, practiced undue influence over him as a result procured the execution of a will wherein she was designated the residuary legatee and principal beneficiary. The caveator has no knowledge as to the attendant circumstances in the execution of the will and puts proponent to her proof."
The parties agreed to a settlement prior to trial. On May 19, 1959 a consent judgment was entered, which provided:
"1. The application for probate of the purported Last Will and Testament, dated 1958, be and is hereby withdrawn and the said proponent Florence Morrison hereby waives and relinquishes any and all claims of any nature, and by way of rights to letters testamentary and any claims and interest in the ...