Opinion
06-03-1930
HEINEN v. STUBENRAUCH et al.
Levenson, Comen & Levenson, of Hoboken, for complainant. Edward Stover, of Hoboken, for defendants.
Syllabus by the Court.
A conveyance by the testatrix, subsequent to the execution of her will, of property devised therein, effected a removal of such property from the operation of the will, and in legal effect operated as a revocation of the will to the extent of the property conveyed.
Suit by Helen Heinen, executrix, against William Stubenrauch and another for instructions in the administration of the estate of Lina Schaefer, deceased.
Decree in accordance with opinion advised.
Levenson, Comen & Levenson, of Hoboken, for complainant.
Edward Stover, of Hoboken, for defendants.
FALLON, Vice Chancellor.
Lina Schaefer died November 6, 1928, leaving a last will and testament dated September 29, 1927, wherein she named the complainant as executrix. The will was probated before the Hudson county orphans' court March 8, 1929. At the time of the making of the will the testatrix was seized in fee of a parcel of land and premises known as No. 312 Hudson street, Hoboken, N. J., title to which was acquired by her by deed dated July 1, 1919. By deed dated June 11, 1928, the said Lina Schaefer and Charles Schaefer, her husband, conveyed the aforesaid land and premises to Fuhrmann Realty Company, a corporation of the state of New Jersey.
The question sub judice is as to whether the beneficiaries named in paragraphs 4 and 5 of the aforesaid will have any right, title, or interest in and to the abovementioned lands and premises. It is clearly manifestthat the defendants have no rights whatever therein or thereto. It is a well-established principle of law that a will is to be regarded as ambulatory until the death of the testator or testatrix, and that it speaks in reference to that time, and that it can only operate on things as they exist at the time of the death of the testator or testatrix. During the lifetime of the above-named testatrix her property and the disposition she wished to make thereof were subjects entirely within her own control and at her discretion. The conveyance by her, after the execution of her aforesaid will, of the lands and premises referred to in paragraphs 4 and 5 thereof, and therein devised by her, removed such property from the operation of the will, and in legal effect operated as a revocation of the will to the extent of the property conveyed. The fact that the testatrix did not die seized of said lands and premises, and that she alienated same to the above-named corporation after the making of her will, is conclusive evidence of a change of intention by her with regard to the testamentary disposition indicated by her will, Hattersley v. Bissett, 51 N. J. Eq. 597, 603, 29 A. 187, 40 Am. St. Rep. 532; 28 R. C. L. "Wills," p. 193, § 151; 40 Cyc. "Wills," p. 1205.
I will advise an order instructing the complainant, as executrix, in accordance with the views hereinabove expressed.