In re the Probate of the Will of Frothingham

76 N.J. Eq. 331 | N.J. | 1909

Per Curiam.

We have reached the conclusion that- the decree of the orphans court was right, and should be affirmed for the reasons stated in the opinion filed by Judge Poster in that court, and that to this end the decree of the prerogative court should be reversed.

Our examination of the testimony convinces us of the correctness of the conclusions reached by the orphans court, viz., that at the time the testator made the erasures his sole object was to get rid of the clauses that he so canceled, and that the having of a fair copy made by a penman, and whatever grew out of it, were after thoughts to which controlling significance did not attach. What we wish to emphasize is that in revocations of this nature, there is but one point of time as to which the intent of the testator is to have controlling effect, and that is the time of the doing of the very act that constitutes such revocation. To extend the scope of such inquiry to subsequent periods, however closely related in point of time with the revocatory act, is but to add a new danger to a rule that is already from its inherent nature too much exposed to fraud.

The decree of the prerogative court is reversed, and the decree of the Monmouth county orphans court affirmed.

For affirmance—The Chief-Justice, Reed, Trenohard, Voorhees, Minturn, Vroom—6.

For reversal—Garrison, Parker, Bergen, Vredenburgh, Gray, Dill, Congdon—7.