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In re Probate of

Decided: October 27, 1964.

IN THE MATTER OF THE PROBATE OF THE ALLEGED WILL OF FREDERICK P. SMALL, DECEASED


Gaulkin, Foley and Collester. The opinion of the court was delivered by Collester, J.A.D.

Collester

This is an appeal from an order of the Bergen County Court, Probate Division, denying an application to set aside a judgment admitting the will of Frederick P. Small to probate.

Frederick P. Small died on March 1, 1958, at the age of 83 years, leaving a last will and testament dated October 25, 1954. Judgment was entered on March 12, 1958 by the surrogate of Bergen County admitting the will to probate. The testator's son, Frederick A. Small, and The Chase National Bank (now The Chase Manhattan Bank) were appointed and qualified as executors. No objection to the probate of the will was made and no caveat was filed.

In his will the testator, inter alia , bequeathed $10,000 to his friend William Lange, $10,000 to his daughter Kathryn Conkling, and $15,000 to his son Frederick A. Small. He created a trust estate of $15,000 under which $3,000 was to be paid to each of the children of his daughter Kathryn Conkling when they attained the age of 21 years. (Four of said grandchildren are petitioners in the present proceeding.) He bequeathed the residue of his estate in trust for the benefit of his children, Frederick A. Small and Kathryn Conkling, and his friend William Lange.

Under the terms of the residuary trust the beneficiaries were to receive the income in equal shares at such times as the trustee, The Chase Manhattan Bank, deemed proper. The trust was to terminate on the sixth anniversary of the testator's death, at which time the corpus and accumulated interest were to be paid to the beneficiaries in equal shares. It provided that if any of the trust beneficiaries predeceased the sixth anniversary of testator's death, his or her share was to

go to the survivors equally. It further provided that if Kathryn Conkling should survive Frederick A. Small and William Lange, and yet predecease the sixth anniversary of testator's death, then in that event, the entire corpus of the residuary trust estate should be paid over to Kathryn Conkling's children in equal shares. The will further contained an in terrorem clause barring a challenge to the will by either testator's son or daughter.

The final account of executors was filed in the County Court on February 24, 1961. No objections were made thereto. The guardian ad litem appointed to represent three minor children of Kathryn Conkling, who are petitioners herein, namely, Frederick Conkling, Allan Conkling and Bruce Conkling, filed a report with the court recommending allowance of the account. The County Court entered judgment approving the account on April 11, 1961.

Kathryn Conkling executed a release to the executors upon receipt of her $10,000 legacy. Her children, Barbara Conkling, Judith Conkling Sheehan and Frederick Conkling, executed releases to the trustee when they attained the age of 21 years and received the money due them under the trust created for their benefit.

On February 18, 1963, approximately five years after the death of the testator, Kathryn Conkling died intestate. On February 21, 1964, six years after the judgment admitting the will to probate, three years after the judgment approving the final account, and one year after Kathryn Conkling's death, her husband, George Conkling, and four of her five children, namely, Judith Conkling Sheehan, Frederick S. Conkling, Allan Conkling, a minor, and Bruce Conkling, a minor, filed a petition to set aside the judgment of probate entered March 12, 1958. It alleged that said will was the product of undue influence exercised upon the testator by William Lange and charged that at the time of the execution of the will the testator was lacking in testamentary capacity. The verification of the petition, signed only by George A. Conkling, recited that the petition was true "to the best of

my knowledge, information and belief." Based on the petition, an order issued directing The Chase Manhattan Bank, as executor and trustee, to show cause why the judgment admitting the will to probate should not be set aside.

The Chase Manhattan Bank, as executor and trustee, and Frederick A. Small and William Lange, as legatees, moved to dismiss the petition and to vacate the order to show cause. Following a hearing the County Court denied the application to set aside the judgment of probate on the ground that it was barred by R.R. 5:3-4(a), which limits ...


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