The issues in this action by the co-executors of the will of decedent Robert S. Herbert, Jr. are whether Warren O'Connell, an attesting witness to the will but not to either of two codicils which republished the will, may benefit under the will, and whether Joan Baller, an attesting witness to the first codicil but not to the will or the second codicil, may benefit under the will and the second codicil. No published New Jersey opinion is in point.
N.J.S.A. 3A:3-6 provides:
No person who has attested a will shall be incompetent to testify concerning the execution thereof by reason of his being a beneficiary thereunder; but whether or not he testifies, as to him and those claiming under him, any beneficial devise, legacy, estate, interest, gift or appointment of or affecting real or personal property, except a charge on real property for the payment of a debt, shall be void.
A will includes any codicil as a single testamentary disposition. N.J.S.A. 3A:1-1; In re Sapery , 28 N.J. 599 (1959). A codicil republishes a will unless it revokes it expressly or by necessary implication because of an irreconcilable inconsistency. Kennedy v. Mockler , 38 N.J. Super. 35 (App. Div. 1955); Creech v. McVaugh , 140 N.J. Eq. 272, 276 (Ch. 1947); 5 N.J. Practice (Clapp, Wills and Administration), § 200 at 322 (1962). Republication is viewed as a useful and flexible instrument for effectuating the testator's intent. In re Hardyman , 159 L.T. 177 (Ch. 1925); Atkinson, Wills (2d ed. 1953), § 91, at 472; Evans, "Testamentary Republication," 40 Harv. L. Rev. 71, 99 (1926). In a will construction the effectuation of the testator's intent is the cornerstone. In re Thompson , 53 N.J. 276, 299 (1969); In re Conway , 50 N.J. 525, 527 (1967); Watson v. Brower , 24 N.J. 210, 215 (1957).
N.J.S.A. 3A:3-6 is derived from 25 Geo. II, c. 6, 1752. The statutory intent is to circumvent perjury and undue influence. La Croix v. Senecal , 140 Conn. 311, 99 A.2d 115, 119 (Sup. Ct. 1953); Tolman v. Reeve , 393 Ill. 272, 65 N.E. 2d 815 (Sup. Ct. 1946); In re Hunt's Estate , 122 N.Y.S. 2d 765, 767 (Sur. Ct. 1953).
Joan Baller was not an attesting witness to an instrument which provided a legacy to her, except in the sense that the first codicil republished the will as a single testamentary disposition. The threat of perjury or undue influence thus appears inapposite. To void her legacy would be an artificial and technical result, contrary to preferable English and American authorities. In re Trotter , 1 Ch. 764 (Ch. 1899); Tempest v. Tempest , 2 K. & J. 635, 69 Eng. Rep. 937 (Ch. 1856); Gurney v. Gurney , 3 Drew 208, 61 Eng. Rep. 882 (Ch. 1855); Lougee v. Wilkie , 209 Mass. 184, 95 N.E. 221 (Sup. Jud. Ct. 1911); Atkinson, Wills (2d ed. 1953), § 91 at 468; 2 Bowe-Parker: Page on Wills (rev. ed. 1960), § 19.91 at 192. The bequests to Joan Baller in the will and second codicil are sustained.
Warren O'Connell, on the other hand, was an attesting witness to the will which provided a stock option in his favor. The attack against his legacy concentrates on the statutory wording that such legacies are "void" and the general authority of Rippel v. King , 126 N.J. Eq. 297 (Ch. 1939); aff'd. 128 N.J. Eq. 179 (E. & A. 1940), that a codicil does not revive a lapsed legacy.
Nevertheless, English authorities construing their parallel statute, which uses the terminology "utterly null and void," have upheld bequests to an attesting witness or her husband in wills which were republished by codicils witnessed by other witnesses. Anderson v. Anderson, L.R. 13 Eq. 381 (Ch. 1872); In re Trotter, supra.
In Anderson, supra at 387, the Vice Chancellor reasoned:
That in the execution and attestation of the codicil in question all the requisites of the statute were complied with is clear. None of the evils which the statute intended to prevent can arise; and it would be as much beyond the provisions and the contemplation of the statute, as it would be opposed to good sense and reason, to hold that the codicil, duly executed and attested, had not the effect of republishing the will, and making it a new and original disposition by the testatrix in January, 1869, of the estate which she had dealt with ...