Goldmann, Sullivan and Labrecque. The opinion of the court was delivered by Goldmann, S.j.a.d.
[87 NJSuper Page 139] In this will case defendants (the contestants below) appeal from the whole of the final judgment
entered in the County Court, Probate Division, in favor of plaintiffs (the proponents), except for that portion which held invalid a bequest to decedent's attorney because of undue influence. They also appeal as inadequate the counsel fee awarded their attorney. Plaintiffs cross-appeal from so much of the judgment as invalidated the bequest to the attorney and from the counsel fees awarded respective counsel.
Sarkis Lattouf, an 80-year-old bachelor and resident of Wildwood, N.J., died of cancer on September 26, 1962, some two weeks after being admitted to a Baltimore, Md., hospital. Surviving him were three sisters and 41 nephews and nieces. After visiting Lattouf at the hospital on September 16, 1962, his attorney, a member of the New Jersey Bar, drafted the will, had it typed up leaving two spaces blank, and returned to the hospital on September 24 with his secretary to have it executed. The blank spaces were filled in by the attorney at the time of execution. These dealt, respectively, with the place of interment (paragraph Second), and specific bequests of $5,000 and an automobile to a niece, Marie Endres, and $5,000 to another niece, Joan Kummeth. Two hospital employees witnessed the will.
Paragraph Fifth of the will bequeathed to the attorney "the indebtedness of Five Thousand ($5,000.00) Dollars and interest which he owes me according to the terms of a promissory note held by me; and it is my will that at my death said indebtedness shall be cancelled * * *."
Paragraph Seventh created a trust of all the rest, residue and remainder of decedent's estate. The trustees were directed
To establish a fund, from which, in their absolute discretion, they may pay for or provide the reasonable necessities of life of any of my nephews or nieces or their or any of their issue in their several stations or situations in life; to pay for or provide for the higher education or specialized training in any craft or profession, of any of, or such of, my grand-nephews and nieces as may in my said Trustees absolute discretion, have need for such assistance and have displayed the capacity, ability and talent to utilize and benefit from such higher education or specialized training.
AS TO PRINCIPAL OR CORPUS
When the youngest child of my niece, Marie Endress shall have attained, or would have attained the age of twenty-five (25) years, then the trust hereby created shall end, and the principal thereof, together with all accumulated and undisbursed interest or income thereon and therefrom shall be equally disbursed and divided among my then living grandnephews and grandnieces. The expense of administering this trust shall be charged to and paid from the income so far as possible."
Decedent appointed the attorney and his secretary as executors, and named a Wildwood bank, a North Wildwood resident and the attorney as his three trustees.
The will was duly probated and letters testamentary issued by the surrogate to the attorney and his secretary on their verified complaint. One of decedent's nephews then moved to have the probate set aside, alleging undue influence, fraud upon the court, testator's physical and mental incapacity, failure of the will to comply with the controlling statutes, legal insufficiency in the will and the trust created thereby, and improper execution. An order to show cause issued, followed by extensive discovery proceedings on behalf of the contestants. After a plenary trial, the county judge filed a written opinion holding that the facts and circumstances created a presumption of undue influence with respect to the bequest in paragraph Fifth, which presumption had not been rebutted; that there was no substantial or reliable evidence to indicate that the undue influence exerted with respect to the bequest had any effect on the rest of the will, so that the remaining provisions were valid; and that the trust did not violate the rule ...