[104 NJSuper Page 589] This is an action for specific performance of an agreement allegedly made on November 4, 1949 between Matthew Woll and his wife, Celeonor Woll, both deceased, to execute identical, mutual, reciprocal and irrevocable wills. Plaintiffs J. Albert Woll and Virginia Woll, executrix of the estate of Willard Woll, deceased, contend that pursuant to said agreement Matthew and Celeonor Woll were to leave to the survivor of them his or her estate, and upon
the death of the survivor the entire estate would pass to Albert and Willard Woll, the sons of Matthew and the stepsons of Celeonor Woll.
Plaintiffs further seek to impress a trust for their benefit upon the assets of the estate of Celeonor Woll now in the hands of defendant Citizens First National Bank of Ridgewood, the executor of her estate. Additionally, plaintiffs seek an accounting of the assets of the estate from defendant bank and their appointment as executors of the estate of Celeonor Woll.
[The court reviewed the proofs and found that the agreement to execute mutual and irrevocable wills was established by clear and convincing evidence.]
There was adduced at the trial certain testimony from plaintiff J. Albert Woll, the admissibility of which was objected to by all defendants.
Evidence Rule 63(32), entitled "Trustworthy Statements Made in Good Faith by Declarants Unavailable Because of Death," provides:
"Subject to Rule 64, in a civil proceeding, a statement made by a person unavailable as a witness because of his death is admissible if the statement was made in good faith, upon the personal knowledge of the declarant, and there is a probability from the circumstances that the statement is trustworthy."
While this court is not aware of any New Jersey case construing the rule, there is some sentiment to be found in the cases decided prior to its adoption favoring less rigid rules of evidence.
By way of dictum, Rule 503 of the Model Code of Evidence, which is more liberal than Evidence Rule 63(32), was discussed with approval by Judge Clapp in In re Spiegelglass, 48 N.J. Super. 265, 273 (App. Div. 1958). In re Petagno, 24 N.J. Misc. 279, 286, 48 A. 2 d 909 (Ch. 1946), urged the adoption by our courts of Rule 503, but since no objection was made to the evidence in question, such evidence was held admissible without the aid of that rule.
The late Chief Justice Vanderbilt, in his concurring opinion in Robertson v. Hackensack Trust Co., 1 N.J. 304, 315, at p. 320 (1949), wrote favorably of Rule 503. His persuasive opinion, wherein he suggested that declarations of decedents should generally be admissible, was referred to in a later case but rejected as not being the law of the then controlling decisions and of the Robertson majority on the evidential question there presented. See Allen v. Gidney, 18 N.J. Super. 63, 65 (App. Div. 1952).
The most prophetic statement found is that made by the Chief Justice in Robertson (at p. 319): "At the very least, we may safely adopt the Massachusetts rule, encompassing as it does all necessary safeguards required for the reception of evidence of this type."
It is this court's considered opinion that Evidence Rule 63(32) should be applied literally. The rule is not so broad as it might appear to be in that the "safeguards" of the Massachusetts statute of which Chief Justice Vanderbilt spoke are even stronger here. And a comparison with Rule 503 of the Model Code reveals the greater breadth of that provision. See also Sullivan v. Dumaine, 106 N.H. 102, 205 A. 2 d 848 (Sup. Ct. 1964), where the Vanderbilt opinion in Robertson and Evidence Rule 63(32) are favorably cited. The only criteria for admissibility under Evidence Rule 63(32) are the unavailability of the witness because of death, the good faith of the statement, personal knowledge of the declarant, and a probability from the circumstances that the statement is trustworthy.
Albert Woll testified that in the early 1950s, while at Miami Beach, his father told him that he had made a will in which he had left everything to Pat (his wife Celeonor's nickname) but that he did not want Albert or Willard to think that he had done this because of any lack of love or affection for them; rather, he had done so because he had received a promise from Pat, and they had agreed, that if he made a will leaving everything to her, she would make a will leaving everything to "the boys," meaning Albert and
Willard, and further, that ultimately they would be carrying out his wish of having the property. Albert further testified that on that occasion his father told him that pursuant to the agreement he had reached with Pat, he had made a will and Pat had made a will; that in his will he left everything to Pat and in her will she left everything to him; that if he preceded Pat in death all his property was to go to them under Pat's will, and if Pat predeceased him the property was to go to the boys under his will -- in other words, if he died his property would go to the boys under Pat's will and if Pat died the property would go to them under the father's will.
I find that this statement regarding the agreement for the wills was made by Matthew Woll to his son Albert in good faith and upon his personal knowledge. And the circumstances, that is, a father's explanation to his son of the apparent disinheritance, attests to its trustworthiness and meets the probability requirement set forth in Evidence Rule 63(32).
Parenthetically, the court also notes that at the trial some objection was raised as to certain statements testified to by the attorney Markewich as having been made to him by decedent Matthew Woll over the telephone on November 3, 1949, which was the day before the Wolls went to Markewich's office to discuss and execute the wills. Specifically, the basic objection was to the attorney's testimony that during the telephone conversation Woll advised him that he and his wife had made an agreement to dispose of their estates and the manner in which they had agreed to do so. But Evidence Rule 63(32) and Ervesun v. Bank of New York, etc., 99 N.J. Super. 162 (App. Div. 1968), certification denied 51 N.J. 394 (1968), are dispositive of this objection, the necessary criteria being present and there being no privilege. Additionally, the statements aforesaid conceivably would be admissible under Evidence Rule 63(12), which provides, in pertinent part, that:
"A statement is admissible if it was made in good faith and it (a) described the declarant's then existing state of mind, emotion, or physical sensation, including statements of intent, plan, motive, design, mental feeling, pain and bodily health, but not including memory or belief, to prove the fact remembered or believed, when such a mental or physical condition is in issue or is relevant to prove or explain acts or conduct of the declarant * * *."
See the comments in the Report of the New Jersey Supreme Court Committee on Evidence (March 1963), page 173, regarding the admissibility of a statement of intention on the part of a testator as to a future testamentary disposition.
However, it might be argued Evidence Rule 63(32) does not permit the admission of a statement made by a decedent as to what a third person told him unless within the comprehension of Evidence Rule 66, "Included Hearsay." It would follow that Albert Woll's testimony set forth above would, to some extent, constitute a violation of the hearsay rule despite Evidence Rules 63(32) and 66, at least insofar as Celeonor's reported statements regarding the agreement are concerned, because of the double hearsay involved. The implication of Evidence Rule 66 is to this effect, since the inherently included statement of Celeonor itself does not appear to meet the requirements of an exception to Evidence Rule 63. In any event, I do not find it necessary to consider, this testimony in reaching my conclusions.
Be that as it may, I find that some two or three weeks before Matthew Woll died and while he was at the New York Hospital, Matthew Woll stated to Albert in the joint presence of Albert and his wife Celeonor Woll that "while I have told you this before, I want you to hear it again while Pat is here; Pat and I have agreed that upon our deaths you and Willard should have all the property we own and pursuant to that agreement I have made a will leaving everything to Pat and she has made a will leaving everything to me." Matthew Woll then turned to his wife Pat and asked her if what he had just told Albert ...