78 N.J. Eq. 221 | N.J. Super. Ct. App. Div. | 1910
The court below refused probate upon the ground that there did not appear to have been a publication in the presence of the
McLelland testified that he read the will to Mrs. Terwilliger, but that she gave no indication whether she heard or understood the contents; Miss Bloom held her hand and guided it while she signed her name, and he, McLelland, then requested Dr. Whitfield to sign it, which he did, and then he (McLelland) signed it, and they both left.
The judge of the court below put his refusal to probate the will on the ground that the presumption of due execution arising out of the perfect attestation clause, was overcome by the direct testimony of McLelland that publication had not taken place, while the statements of the other two persons present, namely, Dr. Whitfield and Miss Bloom, were that they did not remember anything that amounted to a publication either by word or act.
As the testimony now stands, the stories are different. We now have Miss Bloom saying in the most positive terms that there was publication, while McLelland makes an equally positive declaration that there was not.
Ordinarily, I would say that the belated testimony of Miss Bloom, interested as she is, coming after leaving the stand and conferring with counsel as to further testimony (and this is no reflection on counsel), could not be accepted as against the di
As was said by this court in Darnell v. Buzby, 50 N. J. Eq. (5 Dick.) 725 (at p. 726): “By this (attestation) clause the burden of proof is thrown upon the contestant, to negative its averments upon the points in dispute, by strong and convincing evidence.”
Vice-Ordinary Van Fleet in Robbins v. Robbins, 50 N. J. Eq. (5 Dick.) 742 (at p. 745), said he could not conceive how any upright, competent and careful lawyer could, tinder the special circumstances of the case before him, have allowed so essential a part of the business in which he was engaged, as publication, and which it was his duty to see was successfully done, to be overlooked or omitted. In that case the will was witnessed by a lawyer and a doctor, and the lawyer said there was publication while the doctor said there was not, and the court believed the lawyer and admitted the will to probate. In the case at bar the situation is different, and, while the scrivener is not a lawyer, he is assistant clerk in the office of the clerk of Essex county and has had some experience in the drawing and execution of wills. And, with the evidence of publication now in the case, I am unwilling to believe that he attested this will without its having been duly executed, including publication. I think, when he says it was not published, he is at least mistaken. A circumstance tending to show that Miss Bloom’s evidence is more reliable than his, is that Dr. Whitfield said on both of his
Another thing: Doctor Whitfield says that either the attestation clause was read or its purport was stated at the time of' execution. Although this was before the orphans court, and while I agree with the decision of the orphans court upon the-testimony that was before it, nevertheless, I think that this fact may be legitimately used as lending additional probability to-what Miss Bloom now testifies to on the subject of publication. What she says she heard may not be literal, word for word, asMcLelland stated it, but she doubtless approximates closely what he did say.
Now, Miss Bloom did not say tliat there had not been any publication, only that she did not remember. She has been recalled, and now says that she does remember; and what she remembers is just what McLelland, in the discharge of the duty he apparently well knew how to perform, would have been expected to say, and -doubtless did say, namely, ask the testatrix if she declared the paper to be her last will and testament. At-first Miss Bloom said she did not remember, now she says she-does. Either she is untruthful or is mistaken. Her testimony throughout shows her, I think, to be an ingenuous and truthful
While the court below did not err, but was right on the testimony presented to it, the decree must, nevertheless, be reversed and the cause remitted with direction to admit the will to probate.