In Re Probate of the Last Will & Testament of Colton , 115 N.J. Eq. 327 ( 1934 )

The papers propounded for probate were in form a will, dated August 9th, 1922; a first codicil dated June 24th, 1924; and a second codicil dated July 26th, 1929. Due to the filing of a caveat, the matter came on in the first instance before the Essex county orphans court. On the formal proof of the will, the caveat was withdrawn as to that document and it was admitted to probate. The orphans court refused probate to both codicils on the grounds of fraud and undue influence. Lizzie V.P. Culver, residuary legatee in the second codicil, appealed to the prerogative court, claiming that both codicils should have been admitted to probate. On that appeal, the first codicil was sustained and the second rejected. The opinions in both courts are reported in 11 N.J.Mis. R. 410; 166 Atl. Rep. 521. From the decree in the prerogative court Lizzie Culver does not appeal, and the sole appellant here is Annie C. Alling, as one of the heirs-at-law and next of kin, who incidentally is legatee of $5,000 under the will and both codicils. The claim of said appellant is not that the second codicil should be recognized, but that probate should be refused to the first.

Our conclusion is that the decree of the prerogative court should be affirmed, and for the reasons stated in the opinion of Vice-Ordinary Backes, so far as relevant to the subject-matter of the appeal, viz., the validity of the first codicil. The other matters contained in his opinion are not before us for decision.

For affirmance — THE CHIEF-JUSTICE, TRENCHARD, PARKER, LLOYD, CASE, BODINE, HEHER, KAYS, HETFIELD, DEAR, JJ. 10.

For reversal — PERSKIE, VAN BUSKIRK, WELLS, DILL, JJ. 4.