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He was twice married, first to Miss Higbee who died, survived by a son, Mercer, Jr., who became Prosecutor of Mercer County but died before his father; and two daughters, one of whom became the wife of the present Chief Justice, William S. Gummere, the other being the widow of the late Judge Green of the United States District Court. His second marriage was to Miss Havens, who died just about a year before himself, and by whom he had one son, the late Chauncey Havens Beasley, former Trenton District Court Judge and a lawyer of prominence. The Chief Justice was an affectionate parent and took keen delight in expounding the law to his sons, in their student days.
When about seventy years of age, he undertook wood-carving as a diversion, and, in his workshop fitted up in his rear yard, applied himself, after court each day, to the study and practice of this art, and wrought some handsome specimens of furniture and other objects that are now the treasured possessions of his descendants.
The Chief Justice grew old almost imperceptibly. Only physically was he affected by the lapse of years; his mental faculties were unimpaired, and his opinions as an octogenarian are as lucid and vigorous as those of his earlier years. He engaged in the active performance of his duties until his last short illness, his final opinion being read on the day preceding his death.10 Then, on February 19, 1897, as he approached the age of eighty-two, the final summons came, and, in the presence of his family at his home in Trenton, his great spirit passed away. When he died, the law lost one of its mightiest pillars, and the nation one of its noblest citizens. His place in the temple of fame is secure. No sculptured marble need rise to his memory to bear the record of his deeds. His epitaph, inscribed by himself, may be found written in sixty-six volumes of the Law and Equity Reports of New Jersey, and it will endure as long as the law itself.
JOHN W. McGeehan, Jr.
1o Munyan v. French, 60 N. J. Law, 12; 37 Åtl. 771.
NEW JERSEY LAW REVIEW.
PUBLISHED BY The Faculty and Students of NEW JERSEY LAW SCHOOL.
In 1908 New Jersey was virgin soil for a law school. Opportunity for progress then, as now, could only be measured by the capability of a school to run well the race set before it. Our regret, as the regret of any sane, healthy institution ought to be, is that we have not done more in our seven years of life. A glance at the Law School catalogs of 1908 and 1915 does, we trust, show evidence of an attempt to fulfil the duty which we feel rests on us, as the only law school in New Jersey, to inculcate and uphold the best tradition of the profession.
In 1908 our course was two years in length, now it is three; then the text book system was in use, now the case system, which the Carnegie Foundation in its recent investigation of the law schools of the United States, reports to be the best method of teaching law ever devised, is in use in all courses. In 1908 we occupied small quarters in the Prudential building; now we have an entire building at our disposal, and a new building constructed specially for our use, is a hope of the near future.
The faculty of any law school that is content to have the school activities limited to twelve or fifteen hours per week of class room instruction is not performing its full duty to its students. The opportunity for benefit to be derived by students in connection with work on
a law magazine is untold. It is to give such opportunity that our faculty and students have combined for the purpose of publishing the NEW JERSEY LAW REVIEW. This, our first issue, we feel is crude; our editorial board has had no previous experience. We must ask the indulgence of our readers. With encouragement, we trust succeeding issues will improve, until we shall occupy a worthy place with similar legal publications.
RICHARD D. CURRIER,
President, New Jersey Law School.
WILLS-ALTERATION-PRESUMPTION-DEPENDENT RELATIVE REVOCATION OF EXECUTORSHIP. In the recent unreported decision of the Essex County (N. J.) Orphans Court upon caveat in the matter of the will of William Runkle* the testator properly executed an holographic will on May 11, 1912, which nominated as sole executor one Randolph Rodman. Subsequently a codicil, bearing date April 29, 1913, was added, which, although containing no attestation clause, was proven to have been authenticated in accordance with the provisions of the statute, and it was further decided (being disputed by the caveator) that the codicil, when subscribed and published, was attached to and therefore operated as a re-publication of the original will. When the combined document was offered for probate, however, besides other defacements, it appeared that the name of Rodman had been erased, although still decipherable by microscope, and that of William E. R. Smith substituted as executor. There was no reference to the executorship in the codicil, and no evidence or circumstance indicating when the alteration was made, whether before or after the execution of the will or codicil. The questions presented were: (1) As to the presumption and burden of proof regarding the relative time of the alterations and their consequent validity or invalidity; (2) If the insertions were abortive, whether the cancellation of Rodman's name was inoperative under the doctrine of dependent relative revocation; (3) or, as subsidiary thereto, whether the appointment of the original executor was revoked by the obliteration and the right to name the administrator with the will annexed should be vested in the residuary legatee. The Court in the opinion filed October 8, 1914, sustained the contention of the caveators that the presumption was against the priority of the alterations with regard to the time of the execution of the will or codicil, and, proponent failing to sustain the burden of proof thus cast upon him, the doctrine of dependent relative revocation was applied and the probate of the will as originally executed, awarding the executorship to Rodman, was ordered.
It is provided by the Statute on Wills1 and well settled by the decisions that a partial revocation of a will may be accomplished by the obliteration, by the testator, of a clause or provision thereof with the immediate intent to cancel the same, and that the necessary concurrent animo cancellandi may be inferred from the act of voluntarily erasing or striking out such portion;2 and where a testator has had continuous
*An appeal to the Prerogative Court is now pending.
'Compiled St., N. J., 1910, p. 5861, Sec. 2. The New York Statute is essentially different in this respect. See Lovell v. Quitman, 88 N. Y. 377 (1882).
'In the Matter of Kirkpatrick's Will, 22 N. J. Eq. 463 (1871).
and exclusive possession of the instrument after its execution it is presumed that all acts of cancellation were performed by him. But, although such informal revocations are legally effective, no additional provision of any nature may be inserted or substituted without a subsequent re-execution of the will in compliance with all of the formalities prescribed by the statute. Unless so authenticated the alteration is null, but the remainder of the will is not affected. Of course, the due execution of a codicil which refers or is attached to a prior will constitutes a complete republication thereof and will validate all prior insertions. But, where, as in the Runkle case, there is both interlineation and a codicil, an interesting problem arises as to what shall be the presumption, in the absence of any indication upon the will or extrinsic evidence, regarding the comparative time at which such alteration was made; or, in other words, must the proponent, contrary to the general intendments favoring the will, assume the burden of proving the due execution of these prima facie doubtful provisions, or is it the duty of the caveator, in order to sustain his assertion of invalidity, to undertake to establish the fact that the insertions were made subsequently to the signing of both the will and codicil? The point was considered in England in the leading case of Cooper vs. Bockett, Lord Brougham declaring "Whoever propounds an instrument, which, on the very face of it, exhibits grounds of great doubt, must remove those grounds and clear up those doubts." And in Lushington v. Onslow, involving the effect of alterations in a will with a codicil attached, the Cooper case was approved and followed, it being stated that the presumption is against the alteration, particularly in a will having a codicil, the reasonable belief being that if the changes preceded the codicil it would have referred to and confirmed them. And the reasons advanced in a long line of decisions that have firmly established the English rule are the dangerous facility that would be accorded a testator to alter his will after execution (or, it may be suggested, some one other than the testator), if by virtue of a favorable presumption interlineations were always deemed prima facie valid, and the primary legal principle that he who offers a document must establish its authenticity. The presumption is rebuttable either by extraneous proof or by clues upon the will tending to indicate a prior alteration. That the onus probandi devolves upon whoever asserts that such insertions were made before the execution of a will has been generally accepted by the American Courts. The only reported case in New Jersey dwelling upon this
'Hilyard v. Wood, 71 N. J. Eq. 214; 63 Atl. 7 (1906).
12 Jur. 465; 6 N. C. 183 (1848).
'Shallcross v. Palmer, 15 Jur. 837; Greville v. Tylee, 7 Moore's P. C. 320 Privy Council, (1851); Rowley v. Merlin, 5 Jur. (N. S.) 1165 (1860).
'Goods of Cadge, L. R. Prob. & Div., Vol. I., p. 543; Goods of Hindmarch, I P. & D., p. 307.
'Van Buren v. Cockburn, 14 Barb. 118-122; Wilton v. Humphreys, 176 Mass. 253; 57 N. E. 374;. see Wetmore v. Carryl, 5 Redf. 544, for a review of the Authorities in Great Britain and the State of New York. Crossman v. Crossman, 95 N. Y. 145, and Matter of Conway, 124 N. Y. 455 distinguish alterations "fair upon face." Pennsylvania appears contra to the general rule in In re Morrow's Estate, 204 Pa. 479; 54 Atl. 313 (1903), and cases cited.
point is Ward v. Wilcox10 in which Chancellor Magie, sitting as Ordinary, reviewed and entirely concurred in the English rule. Therefore, in concluding that a presumption arises from an unexplained alteration of a will that the insertion was made after execution, and that the burden of proof is upon any person asserting the contrary, the Orphans Court in the Runkle matter was clearly in harmony with British precedents and American tendencies. But, conceding the insertion to be therefore invalid, should the Court have reinstated Rodman as Executor? The cancellation of his name undoubtedly operated as a revocation of his appointment, unless the well-established doctrine of dependent relative revocation should be applied. Wherever a testator has erased or crossed out the name of a legatee11 or devisee12 and has simultaneously substituted another name, or has changed the amount or subject matter of a legacy,13 and such attempted substitution or change lacks force because of the failure to properly re-execute the will, it is well settled that the cancellation of the original provisions is dependent and conditional upon the efficacy of the second and if the latter purpose be not accomplished the courts consider that the act of cbliteration was done signe animo cancellandi and, in consequence, reestablish, if legible or provable, the original clause. In respect to an executor the decisions have been quite uniform in holding that the same reasons and rules apply, because, it being a reasonable assumption that the decedent intended to appoint some person as executor, it is presumed that the intent to revoke the properly authenticated appointment is not absolute at the time of cancellation, but is conditional upon the validity of the attempted substitution of the other.14 The entire transaction is a unit and inseparable. It is performed as a complex act, and, if it fails in part, it is ineffective in its entirety.
J. W. M., JR.
AUTOMOBILES-PARENT'S LIABILITY FOR TORTIOUS ACTS OF HIS CHILD. In the case of Missell v. Hayes,1 (New Jersey Court of Errors and Appeals, July, 1914) in a suit against a father for his son's negligence in operating the father's automobile on the public highway, it appearing that the automobile was for the use of the father's family, and that at the time of the accident the son was driving and the father's wife and daughter were in the automobile, and that all three were members of the father's immediate family, it was held to be a jury question, whether the son was the father's servant on the father's business, in which case the father would be liable, or whether, as all
164 N. J. Eq. 303; 51 Atl. 1094; aff. 65 Id. 397; 54 Atl. 1125; cited with approval in 40 Cyc. 1288, note 47. The remarks upon the question of presumption in this case, however, are merely dicta, as the decision was based upon the conclusion of fact that the alterations preceded the will.
"Gardner v. Gardner, 8 L. R. A. 383 (N. H. 1890).
12Wolf v. Bollinger, 62 Ill. 368.
18Locke v. James, 11 M. & W. 901; Short v. Smith, 4 East. 419; Wetmore v. Carryl, supra.
Re Goods of Greenwood, L. R. Prob. Div. 7 (1892). See also, Jackson v. Holloway, 7 Johns. 399; Doane v. Haddock, 42 Me. 72. Schouler on Wills, 431.
'91 Atl. Rep. 322.
'Ploetz v. Holtz, 124 Minn. 169; 144 N. W. 745.