Opinion
06-28-1910
SCOTT v. CARTER.
A. H. Weller, for the motion. J. Edward Smith and Carl A. Hansmann, opposed.
Suit by Isbon B. Scott, Jr., against Mary B. Carter to compel the specific performance of a contract to purchase real estate. Decree overruling demurrer advised.
The bill in this case is filed to compel the specific performance of a contract to purchase lands. They were owned by one Graves, who was domiciled in California, where he died in 1893, leaving a will and codicil, both of which were executed in this state. The will devised his residuary estate to the California Title Insurance & Trust Company upon certain trusts therein declared, with power to make sale upon conditions which it is not necessary at this time to state. The trustee conveyed the premises in question to one Gordon, who conveyed to the complainant. The agreement sought to be enforced is one made by the complainant by which he agreed to convey the premises to the defendant. The complainant has set out in his bill not only the devolution of the title by the deeds of conveyance, but also the manner in which the will of Graves, which gave the authority to sell and convey, was admitted to probate in California; and the manner in which it was attempted to file a copy here so as to make title under sections 24 and 25 of out-present probate law (P. L. 1898, pp. 722, 723). After the will and codicil had been admitted to probate in California, an exemplified copy was tiled with the surrogate of Essex county. Objection having been made to the validity of this record, the surrogate, on the petition of the foreign executor, proceeded to take further proofs apparently under the twenty-fifth section of the orphans' court act. These proofs consisted of an affidavit by a witness to the will, and an affidavit by a witness to the codicil, by which the affiants (having the exemplified copy of the will before them) testify that they were witnesses to the "annexed writing purporting to be a copy of the last will and testament of William H. Graves," the testator therein named, deceased, and that they severally saw "the said testator sign and seal the said original will (and codicil) of which the annexed is a copy, and heard him publish, pronounce, and declare the same as and for his last will and testament." The affidavits then continue in the usual form, describing the manner in which the will was executed. The defendant now objects that it does not appear by the Essex county records that the will in question was executed in accordance with the laws of the state of New Jersey.
A. H. Weller, for the motion.
J. Edward Smith and Carl A. Hansmann, opposed.
HOWELL, V. C. Sections 24 and 25 of our orphans' court act (P. L. 1898, p. 715) relate to the manner in which foreign wills may be given a status in our scheme of probate. Section 24 provides that a copy of any will of a nonresident decedent which shall have been admitted to probate in any foreign jurisdiction, with the certificate of probate and the letters granted thereon, may be recorded in the office of the surrogate of any county of this state, and "shall, if it thereby appears that said will was executed in accordance with the laws of this state, have the same force and effect in respect to all lands and real estate whereof the testator died seised as if said will had been admitted to probate and letters testamentary or administration of the will annexed thereon had been issued in this state." The section contains a clause validating conveyances made thereunder. Section 25 provides that when any such exemplified copy of a will comes from a foreign jurisdiction, and it shall not appear by the record that the will was executed in the manner required by the laws of this state to transfer or effect title to realestate situate in this state, then it shall be lawful for the orphans' court or surrogate to receive additional proofs as to the manner of the execution of the will without the production of the original will. It was in pursuance of the provisions of this section that the affidavits above mentioned were taken by the surrogate of Essex county.
The proof of the due execution of the will made before the California court was made by one Spinney, who was not a witness to the will, but who had been in confidential business relations with the deceased for a period of 30 years or thereabouts prior to his death. He states that he had seen the testator write and had seen writings purporting to be the testator's upon which the witness had acted; that he had thus acquired knowledge of the testator's handwriting; and that he recognized the signatures to the will and codicil as the handwriting of the testator. He further states that he recognized the signatures of the subscribing witnesses to the will and codicil; that he had seen writings purporting to be their writings upon which he had acted; that he had thus acquired a knowledge of their handwriting; that he believed their signatures upon the will and codicil to be their genuine signatures; and that neither of them resided in the state of California or were within the jurisdiction of the California court. This is the extent to which the California proofs go. There remains therefore the proof of the publication of the document, of the request of the testator that they should be witnesses to his will, and that the three signed in the presence of each other. It may be that the regularity and completeness of the attestation clauses may perfect the proofs. If they do not, then the will does not appear to have been proved in accordance with the laws of this state, and the exemplified copy thereof cannot be evidential. McCarthy v. McCarthy, 57 N. J. Eq. 587, 42 Atl. 332. Mr. Justice Depue said in Allaire v. Allaire, 37 N. J. Law, 325, that the attestation clause was prima facie evidence of all the facts stated in it, and that if by reason of the death of the attesting witnesses or their absence beyond the reach of process, or for any other cause, a foundation be laid for the introduction of secondary evidence, proof of their signatures will be evidence that what they attested in fact did take place; and that if the attesting witnesses when called admit their signatures, but through defective memory, or for any other purpose, fail to testify to the due execution of the will, it may be established on the presumption arising from the form of the attesting clause, unless there be affirmative evidence given to disprove its statements. This statement of the law was expressly affirmed by the opinion of Chief Justice Beasley in Allaire v. Allaire, 39 N. J. Law, 113. See, also, Nelson v. Potter, 50 N. J. Law, 324, 15 Atl. 375, which contains a very complete history of the statutes touching the manner and effect of the probate of foreign wills.
While I believe that the record in the Essex county surrogate's office is efficient to make title under the will, I do not find it necessary to decide the point, for the reason that the will may be sustained, even though the statutory method of making proof of the will may be defective. Under the law concerning wills and the devolution of title thereunder as administered in this state, the complainant need not rely upon the statutes above quoted. He may resort to what may be called the "common-law method" of proving title; that is, by due proof of the execution of the will in open court at the final hearing of the cause. If at the final hearing the complainant shall be able to produce to the court the original will, its execution then may be proved to have taken place in the manner provided by the statute, and if such proof should be made it would obviate and override the objection now made to the bill. The fact that such proof may be difficult or inconvenient cannot avail the defendant. The complainant tenders a title, and if on the final hearing he shall be able to prove it he must succeed, so far as the defense now interposed is concerned. There is no difference in principle between proving a title in equity and in proving the same title at common law, and it is not an uncommon thing to find in the books actions at law and in equity wherein the plaintiff has produced the original will and made proof of it according to the common-law method. This was done in Allaire v. Allaire, supra, and may be done in this case. Lindley v. O'Reilly, 50 N. J. Law, 651, 15 Atl. 379, 1 L. R. A. 79, 7 Am. St. Rep. 802.
It thus appears that the question which is projected into the case at this time relates, not to the substance of the bill, but to the manner of proving the complainant's case. It is quite evident that he may make his proofs one way or the other, as is most convenient for him. The objection does not go to the foundation of the suit, but rather to the procedure in the cause. Besides, it is a well-established rule in equity practice that if a bill is sustainable upon any lawful theory a demurrer to it will not lie. Such is the situation here.
I will advise a decree overruling the demurrer and requiring the defendant to answer within 20 days, in accordance with the statute.