Carton, Mintz and O'Brien. The opinion of the court was delivered by O'Brien, J.s.c., Temporarily Assigned.
The sole issue involved in this appeal is whether, in light of the facts in the case, a witness properly subscribed her name to a will "in the presence of the testator."
On April 20, 1971 Dr. Eugene J. Politowicz signed a self-made will on a coffee table in the living room of his home, as did the first subscribing witness, Florentine Scotese. The second subscribing witness, Mary Scotese, was unable to bend over and sign the will on the coffee table as she was pregnant at the time. As a result she took the will from the living room into the adjoining dining room where she subscribed her name at a table. Both decedent and Florentine remained in the living room. She then returned to the living room and handed the will to the decedent.
Testator died on August 7, 1971. On August 30, 1971 the will was admitted to probate by the Surrogate of Camden County. Harriet M. Politowicz was appointed executrix. Decedent had previously been married to Patricia C. Powers and was the father of her three minor children. Mrs. Powers, as guardian ad litem of the children, instituted this action seeking to set aside probate of the will and issuance of the letters testamentary.
The trial court concluded that the will had not been executed in accordance with the requirements of N.J.S.A. 3A:3-2, finding that there was no evidence that Mary Scotese subscribed her name "in the presence of the testator." It therefore set aside probate of the will. It is from this decision that the proponent of the will appeals. No appeal was taken from an additional determination by the trial court as to the genuineness of the signature of decedent.
Although the record does not contain a copy, the trial court found that "the attestation clause attached to the will contained language which would constitute prima facie proof of due execution and publication." Thus, the court recognized the well settled principle that a perfect attestation clause is prima facie evidence of all the facts stated therein.
A perfect attestation clause is a safeguard against defective memories, unintentionally dulled by the passage of time or deliberately dulled by changes in human relationships, giving rise to enmity for the testator or the persons he makes beneficiaries of his will. An attestation clause is prima facie evidence of the facts stated in it, which may be overcome by clear and convincing proof to the contrary, either from the subscribing witnesses themselves or from facts or circumstances actually incident to the execution. Such proof must be clearly irreconcilable with the recitations of the clause. In re Hale , 21 N.J. 284, 299 (1956).
While the presumption which arises from a perfect attestation clause has never been regarded as conclusive, the clause operates to cast the burden of proof upon the contestant to negative its averments. The attestation clause is now accepted as "a most important element of proof" and the derivative presumption is deemed impregnable unless it is devastated by "strong and convincing evidence." In re DuBois , 9 N.J. Super. 280, 283, 284 (App. Div. 1950).
The trial judge made the following findings and conclusions of fact:
In so considering the testimony, I find that of Mary Scotese to be the most reliable and entirely credible. She admitted she signed at the dining room table, while the decedent and her husband were still in the living room. I am satisfied and I find that such was the fact. While the distance between them was not great, she was physically in a different room than the decedent when she signed. She testified to no fact or surrounding circumstances from which it can be inferred that decedent could have seen her sign while she did so.
The evidence here establishes that the two rooms adjoined, that a sizeable doorway separated them, and that the distance between the living room coffee table and the dining room table was not great. There is, however, no testimony from which this court can reliably infer that at the very moment when Mrs. Scotese appended her signature, the testator was in a position from which he could have seen her sign if he had looked. Absent such testimony, the court must ...