Fritz, Lynch and Trautwein. The opinion of the court was delivered by Fritz, J.A.D.
This appeal involves a contest over a decedent's estate.
Wilhelmina Schuhmann died after having executed a common or joint will with her husband, Christian J. Schuhmann, who predeceased her. This will, executed June 21, 1967, provided reciprocally in its first paragraph for a bequest of all the estate of the first to die to the survivor. This paragraph also appointed the survivor to be the executor. The second paragraph provided for the contingency of a common disaster
by specific bequests on a percentage basis to particular heirs in each of two classes, one class of which had some sort of affinity with Christian in particular, and the other with Wilhelmina. Each class was to receive an aggregate of 50% of the estate. Only the specified heirs could take; any who predeceased surrendered his inheritance to an equal division among the taking members of that class. The appointment of an executor in the event of this contingency was also accomplished. The final paragraph simply directed cremation.
Christian died December 11, 1970, survived by Wilhelmina. The will was admitted to probate and letters testamentary were issued to Wilhelmina. On June 3, 1971 Wilhelmina died of a self-inflicted gunshot wound, without having executed a new will. Some emphasis is here placed by appellant's argument on the undisputed fact that on April 19, 1971 Mrs. Schuhmann signed the following typewritten note:
In case of my death, before making up a new Will and Testament, I hereby state, that the second part of my deceased husband's CHRISTIAN J. SCHUHMANN'S Will and Testament, to be used in case of common disaster, shall go into effect, as to the distribution of all of my assets. This is to take the place of a new Will and Testament, until such time, when I shall be able to make up a new Will.
It is appropriate to observe here and now that this writing is unwitnessed and does not satisfy statutory requirements for a testamentary devise.
Nine days after Wilhelmina's death Manfred Sitzmann, a beneficiary of the will in the class relating to Wilhelmina, said to be a nephew and allegedly her sole heir and next of kin, in an instrument asserting intestacy as to Wilhelmina, renounced his "right and claim to administration" in favor of one Joseph G. Boratto. Inconsistently enough, considering the averment of intestacy, Boratto presented the June 21, 1967 will to the surrogate for probate and asked that letters
of administration with the will annexed be issued to him. The surrogate denied probate on the ground that "the executor and sole legatte [ sic ] named in the Last Will and Testament of the above named decedent, has predeceased the Testatrix having died on June 21st, 1967 [ ...