Goldmann, Kilkenny and Collester. The opinion of the court was delivered by Collester, J.A.D.
This is an appeal by Sarah Berzin from an order of the Monmouth County Court, Probate Division, denying her motion to set aside the probate of the will of Abraham Landow, deceased.
On October 14, 1961 Abraham Landow of Keansburg, New Jersey, died, leaving a last will and testament which was duly probated in the Surrogate's Court of Monmouth County on March 29, 1962. The will had been executed by the testator on August 22, 1960. It named Louis G. Turen, a New York attorney, as executor.
The testator devised and bequeathed substantial gifts to the State of Israel, to charities and to a friend, one Miles Murphy. He gave nominal legacies to his three sisters, surviving members of his family. He bequeathed to his friend and attorney, Louis G. Turen, $1,000 and a watch. He named Turen as his residuary legatee.
Appellant Sarah Berzin, a sister of decedent and a resident of New York City, was bequeathed $500.
On February 3, 1963, ten months after the will was probated, the appellant secured the issuance of an order of the Monmouth County Court, Probate Division, directing the executor to show cause why the judgment admitting decedent's will to probate should not be set aside. In her affidavit filed in support of her motion, she alleged that she had not received written notice from the executor that the will had been probated and of the place and date of probate, which R.R. 4:99-7 requires be sent to a beneficiary within 60 days after the date of probate. She further alleged that the principal beneficiary under the will was Louis G. Turen (the executor), a New York attorney, in whose office the will was "claimed" to have been executed and that the paper backing of the will bore the name of Joseph J. Engle, an office associate of Turen. She contended that there was thus presented a prima facie case of an attorney, Turen, using his confidential relationship with the decedent to be named principal beneficiary to the exclusion of the natural objects of decedent's bounty, his surviving sisters.
She charged that there was a serious question of the mental competency of the testator at the time he executed his will; that he was under a delusion that his sister Esther was trying to poison him.
In an answering affidavit Francis J. Simone, attorney for the executor, stated that on February 2, 1962 he had informed appellant by telephone that the will was being offered for probate in Monmouth County; that it named Louis G. Turen as executor and Mrs. Berzin as a beneficiary, and that as soon as it was probated he would send her a copy of the will. He said
on this occasion appellant discussed with him a claim against the estate for money she had expended at the funeral and he had informed her that it would be paid. He asserted that on April 11, 1962, following the probate of the will, he mailed a copy of the will to appellant. He conceded that the letter did not state that the will had been probated and did not set forth the date and place of probate, and admitted that this was an oversight on his part.
Louis G. Turen stated in his affidavit that appellant had personal knowledge that the will was probated on March 29, 1962 and that he was executor. He said that on November 18, 1961, four months prior to the probate, he had talked to appellant about the will and that on the following day she confirmed the conversation by letter and presented a claim for $75 against the estate ($25 for money paid to the rabbi at the funeral and $50 for memorial services for a year). He asserted that on November 23, 1962 he paid $25 of the claim to appellant's husband and received a release for the same. He further alleged he had numerous telephone conversations with appellant, who wanted to know when she would receive her $500 legacy.
Turen denied the testator was mentally incompetent when the will was executed or that he had exerted undue influence upon him. He further stated appellant's assertion that he was the principal beneficiary of the will was incorrect and alleged that the principal beneficiaries were the State of Israel, Miles Murphy, The Damon Runyon Cancer Fund and the Will Rogers ...