Heinen v. Stubenrauch

Lina Schaefer died November 6th, 1928, leaving a last will and testament dated September 29th, 1927, wherein she named the complainant as executrix. The will was probated before the Hudson county orphans court March 8th, 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, New Jersey, title to which was acquired by her by deed dated July 1st, 1919. By deed dated June 11th, 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 above-mentioned lands and premises. It is clearly manifest that 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, *Page 302 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; 28 R.C.L. "Wills" p. 193 § 151; 40 Cyc. "Wills" 1205. I will advise an order instructing the complainant, as executrix, in accordance with the views hereinabove expressed.