65 N.J. Eq. 681 | N.J. Super. Ct. App. Div. | 1903
The paper-writing offered for probate as the last will and testament of Jacob G. Berdan, who died in the city of Paterson, December 26th, 1902, is shown by the evidence, and conceded by counsel for the caveators, to have been written by the testator himself, whose genuine signature is thereto appended. There is appended to the will, and also written by the testator, an attestation clause, certifying to an execution by the testator, in all respects in conformity with the provisions of our statute of wills respecting the execution of such instruments. Below the attestation clause appear the signatures of two persons, Albert Bogert and Albert H. Blauvelt. These persons have been produced as witnesses and each testifies that his signature was made by himself.
Proof that .testator signed this instrument and that two-persons signed this attestation clause, raises a presumption of the due execution thereof as a testamentary disposition of property, which will permit and require its admission to probate. The burden of proof is thereby cast upon the contestants, who must, to justify its rejection, negative its averments by strong and convincing evidence. Darnell v. Buzby, 5 Dick. Ch. Rep. 725, and eases therein cited; S. C., 7 Dick. Ch. Rep. 337; Hildreth v. Marshall, 6 Dick. Ch. Rep. 241; Swain v. Edmunds, 8 Dick. Ch. Rep. 142; S. C., 9 Dick. Ch. Rep. 438.
It is first contended in their behalf that, upon the face of the will, the attestation clause is shown to be untrue or ineffective. The first of these contentions is that the will could not have been signed in the presence of the witnesses, and that the attestation clause does not certifj'- that the signature was acknowledged by ■the testator in the presence of the witnesses. Passing the question whether the statute, which requires signing in the presence of the witnesses, or that the signature should be made or acknowledged in their presence, is not satisfied by a certificate that the will was signed, it is sufficient to dispose of this contention to say that it is not raised upon any admissible fact. Testator undoubtedly wrote the whole will and the signature. The writing was done with a pen evidently differing from that used by the witnesses. But that circumstance does not indicate that the signature was necessarily written at the time the body of the will ivas written. It may well have been written at the time the witnesses wrote their names, and if written, with the same pen which the testator used in writing the body of the will it would present the exact appearance that it does. The proofs show that testator was accustomed to use a fountain pen, and writings and signatures made by him with such a pen have been put in evidence. They resemble in all respects the body of the will and the testator’s signature. It is-further proved that testator carried such a pen and, when he needed to write, would take it from his pocket rather than use other pens. There is nothing on the face of the will to indicate that he may not have done so in the presence of the witnesses.
It is further contended that tire certificate in the attestation clause is ineffective, because below the last words of the clause was written, in testator’s handwriting, the word “witnesses,” and it is contended that the certificate of the two witnesses must be taken as limited to what 'is included in that word and not to the details of signing and publishing the will. But I am unable to yield to this' contention. The word “witnesses” is written to the left and not over the signatures of the witnesses. It is evidently
This compels the consideration of the evidence before me and a determination whether it justifies the court in admitting the paper to probate.
As before stated, the proof is plenary that the will has the signature of the testator appended to it in his own handwriting, and that a proper attestation clause is also appended, to which the two witnesses have made their signatures in their own handwriting. This raises a presumption of due execution, which presumption, however, may be overcome by due proof. Unless overcome, it will require and support a decree for probate.
The contention of caveators is that the presumption is overcome by the evidence of the two persons who placed their names at the foot of the attestation clause as witnesses. The particular contention is that, by their evidence, the certificate is shown to be untrue in two respects, (1) that it untruly certifies that the will was signed in their presence, while, in fact, it was neither signed nor the signature acknowledged by the testator in their presence, or the presence of either of them; and (2) that they were not together at the time wdien they appended their signatures to 'the attestation clause, but that each appended his signature thereto at a different time and a different place.
Both of these witnesses were old friends of testator, and although each knew the other by sight they were not intimate acquaintances. They lived in different directions and each at some distance from the city of Paterson.
The writing bears date December 12th, 1891. After the death of the testator, Mr. Samuel Demarest, Jr., a counsellor-at-law, practicing in Hackensack, N. J., was found to be in possession of an envelope, endorsed in the handwriting of the testator, with these words: “The last will and testament of Jacob G. Berdan, December 12, 1891.” Upon being- opened, the envelope was found to contain the instrument now offered for probate. Mr. Demarest, the custodian, was called as a witness and testified
Albert Bogert, whose signature on the paper in question first follows the attestation clause, was called as a witness by the proponents. Upon their examination, he testified that his signature was made by him and at the request of the testator. Upon cross-examination on tire part of caveators, and upon further examination, by the counsel of proponents and the counsel of the legatee, he stated the circumstances under which his signature was made in the following manner: He testified that his signature was written at a place called WickofE, which is a station on the New York and Susquehanna railroad, in Bergen county, at which place he was upon some official business; that he met testator there, and that testator asked him if he would be a witness to his will, and, upon witness assenting, testator told him to sign it "right down there,” and that he thereupon signed his name in the place indicated by testator; that testator was then living at the house of a Mrs. Winters, near Wickoif station; that witness signed his name either at the station or at the Winters’ house, at which he took lunch with the testator on that day, and that he wrote his name with a fountain pen furnished by testator. He further testifies that no one was present when he signed Ms name except testator and himself; that no one did any writing upon the paper at the time except himself; that testator did not tell him that he had signed the paper; that he did not see testator’s name on the paper, and that he did not look at or see what was on the paper.
If Bogert’s evidence is entitled to entire credit, it is obvious that it overcomes the presumption arising from the attestation clause, for he was not made acquainted with its contents, and, if his memory of the transaction is to be relied on, the paper was not executed with the formalities required by our statute to make it a testamentary disposition of property.
But his statement of the transaction is so inconsistent with
I do not intend to intimate that his evidence could be rejected as consciously and intentionally false, but only that it indicates lapses of memory, and to such an extent that it might be a question whether his recollection can be relied on, and whether, if standing alone, it would be such convincing testimony as would suffice to overcome the presumption arising from the signed attestation clause. Testimony of one of the subscribing witnesses suggesting doubt, or his own want of recollection of the transaction, will not justify refusal of probate if the other witness corroborates the accuracy of the attestation clause as to execution. McCurdy v. Neall, 16 Stew. Eq. 333.
But there is other evidence which cannot be ignored. Albert II. Blauvelt, tire other subscribing witness, was called by proponents and testified that he made his signature (which is below that of Bogert) at the request of testator. Upon cross-examination and further examination he gave this account of the transaction: He testified that he was in a saloon in the city of Paterson, in which place testator (who was an insurance agent) was accustomed to do business; that this was at a time ten, eleven, or twelve years prior to the time he was examined, and
Hnless I can find in the proved facts in the cause, or in this evidence itself, ground for rejecting it as incredible, I must give it effect. I can find no ground for rejecting it. The only fact which has raised any doubt in my mind is the singular resemblance in the signatures of this witness and of Bogert, which gives the impression that they were written with the same pen and the same ink. But this circumstance will not in my judgment justify me in finding that Blauvelt does not recollect what he professes to recollect respecting his part in the transaction. As I deem his evidence credible, I am compelled to conclude that this instrument was not executed in the manner required by law, because it was not signed or the signature acknowledged by testator in the presence of two witnesses present at the same time. Any presumption arising from the attestation clause has been overcome by Blauvelt’s testimony that he did not see the attestation clause, or knowingly certify to the facts therein stated, and that the facts in the respects above stated are not true.
It results that the probate must be denied. As proponent had in his possession a will perfect upon its face, in the hand