Helen Saenger died, leaving a will with the following attestation clause and signatures:
IN WITNESS WHEREOF, I have hereunto set my hand and seal this 7th day of July, Nineteen Hundred and Fifty-four.
Signed, sealed, published and declared by the said Testatrix, HELEN SAENGER, to be her Last Will and Testament, in our presence, who, thereupon, at her request, and in her presence, and in the presence of each other, all being present at the same time, have hereunto subscribed our names as witnesses, this 7th day of July, Nineteen Hundred and Fifty-four.
151 Greenwood Ave. East Orange, N.J.
744 Broad St. Newark, N.J.
When the will was offered for probate, the Surrogate found doubt on the face of the will, as the result of which the matter came before me as a county judge pursuant to N.J.S.A. 3A:2-3 to 3A:2-5 and R. 4:84-1(e). If probate is denied, certain charitable gifts will fail.
The will contains the names of decedent and the witnesses, in the form indicated above. Testatrix' signature was identified by a relative who knew it well. Neither of the witnesses was produced, because William L. Vieser is dead, and Nannie Johnson cannot be located despite diligent search. William L. Vieser was an attorney. At the hearing his former law partner testified that he was "knowledgeable in the field of the execution of wills," and identified his signature. The posture of the facts is, therefore, that there is a perfect attestation clause, plus proof of the signature of one witness, and proof that search has failed to reveal the whereabouts of the other witness.
The issue in this case is stated in 5 N.J. Practice (Clapp, Wills and Administration), § 129 at 233, 234, n. 3, in a comment on Allaire v. Allaire, 37 N.J.L. 312 (Sup. Ct. 1875), aff'd 39 N.J.L. 113 (E. & A. 1876):
Query whether the will may be probated by the Surrogate's Court, in such case, on proof of the signature of one witness, when the proof of the other's signature has been found unattainable after diligent search therefor.
Additionally, I have been told that until this case arose probate has been denied routinely by the surrogate because of lack of proof of the signatures of both witnesses, and that this has been the practice for a long time. It is, therefore, appropriate that I give reasons for the conclusion that the will should be admitted to probate.
N.J.S.A. 3A:3-2 sets forth the requirements for a valid will. "A literal construction of the statute with regard to the formal requisites is demanded * * * and we have no right to accept anything short of positive proof of conformity with the statutory requirements * * *." In re Hale's Will, 21 N.J. 284, 295 (1956); but note, Langbein : "Substantial Compliance with the Wills Act," 88 Harv. L. Rev. 489 (Jan. 1975). The issue here, however, is not whether there should be relaxation of proof of compliance with the statute, but whether, considered in the light of the appropriate rules of evidence and the decisions which bear on the subject, the requirement that the signatures of both attesters be proved where there is a complete attestation clause as there is here, does not present an unnecessary barrier to the probate of wills.
The problem is one of evidence, not of substance. Evid. R. 71 specifically so provides. The ...