Vreeland's undivided half interest obtainable Court of the United States in American Land from the records or otherwise. In 1903 Siedler filed a bill in the Court of Chancery of New Jersey under the provisions of the act entitled "An act to compel the determination of claims to real estate in certain cases and to quiet title to the same." 4 Comp. St. p. 5399. The complainant Siedler being unable to ascertain whether Jacob Vreeland was alive, or if dead who were his heirs or devisees, took proceedings in his suit under section 10 of the Chancery Act to bring into the suit as defendants, so as to bind them by the decree, parties named and described as "Jacob Vreeland, his heirs, devisees and personal representatives." A large number of persons were made defendants by their true names, many of them bearing the name Vreeland, and it is indirectly stated in the bill that these persons, or some of them, were heirs or devisees of Jacob Vreeland. There is no claim made or proof presented that these individuals, who were proceeded against by name as absent defendants, exhausted the class embraced within the term "heirs, devisees and personal representatives" of Jacob Vreeland. The bill by a very plain implication, as well as by the fact that it undertakes to get the benefit of section 10 of the Chancery Act, concedes that at least there might be heirs, devisees, or personal representatives of Jacob Vreeland whose names are not known and who must be brought into the suit under section 10 of the Chancery Act if they can be brought in at all. Some of the defendants whose names are given were served with process. The greater number of named defendants were proceeded against by publication, and among these last appears "Jacob Vreeland, his heirs, devisees and personal representatives." 2. It may be remarked in passing that the act of March 21, 1912 (P. L. 1912, p. 151, 1 Supp. Comp. St. p. 1545), as counsel for the complainant concedes, had no application to the Siedler case in which the decree was made in 1903. No criticism has been made of the proceedings taken under section 10 of the Chancery Act in this Siedler Case, excepting that this statute cannot be applied to an action to quiet title under our statute. This point was directly decided in the case of Hill v. Henry, 66 N. J. Eq. 150, 57 Atl. 554 (Stevens, V. C. 1904). I am entirely unable to distinguish the case at bar from the case of Hill v. Henry, above cited. One of the propositions decided as the basis of the decree dismissing the bill was "that the provisions of section 10 [of the Chancery Act] have no application to the act to quiet titles." 3. Counsel for the complainant argues that the views expressed by Vice Chancellor Stevens in Hill v. Henry in regard to the constitutionality of section 10 are no longer tenable in view of the decision of the Supreme Co. v. Zeiss, 219 U. S. 47, 31 Sup. Ct. 200, 55 L. Ed. 82, also citing Cona v. Henry Hudson Co., 86 N. J. Law, 154, 90 Atl. 1031, Ann. Cas. 1916E, 999. I have not deemed it necessary to consider this matter, because, conceding all that counsel for the complainant claims in regard to the constitutional questions involved in the case, the decision of the Court of Chancery that section 10 of the Chancery Act does not apply to suits to quiet title stands unshaken. 4. My attention has also been called to the recent case of Silver v. Gattel (Ch.) 105 Atl. 137 (Lane, V. C. 1918), in which the applicability of section 10 of the Chancery Act to a suit to foreclose a tax lien under the tax act of 1903 (4 Comp. St. p. 5137, § 59) was under discussion. Vice Chancellor Lane differs widely from Vice Chancellor Stevens upon the point under consideration, but I have not looked into the matters concerning which these two learned judges appear to differ. In Hill v. Henry the learned Vice Chancellor seems expressly to except from the rule requiring a named defendant, "tax and condemnation cases," which cases, he adds, “are manifestly peculiar." 66 N. J. Eq. p. 155, 57 Atl. 556. [1, 2] 5. I do not doubt that the state has the power to provide an action quasi in rem for the benefit of all parties interested in property especially land within the state. The res is within the state, and the other element, reasonable notice, it seems to me, can be provided for in all possible cases. The owners of property within the state are certainly not obliged to submit to inconvenience and loss because persons who appear on the public records as holding interests in the property have disappeared, and it is impossible to ascertain whether or not their apparent interests have passed to and are held by persons unknown. What is reasonable notice in an action quasi in rem, as has often been said, depends upon circumstances, and sometimes cannot be completely defined by statutes or rules of court, but must be left to be prescribed by the court in the particular case. It seems to me that it would be easy to give reasonable notice in an action quasi in rem to quiet a title so as to bring in and bind by the decree, not only a party named as the original owner of or claimant to some title or interest in the land, but all unknown and unascertainable holders of any title or interest directly or remotely derived from such party. Such unknown possible claimants might include, not only heirs and devisees of the party named, but devisees of heirs and heirs of devisees, and all other unknown parties acquiring title or colorable title to any interest in the land, which title or colorable title was originally derived from the party named in the bill. If any of the unknown and unascertainable, possible claimants (106 A.) should appear in the suit and set up their | Act. In view of the form of the answer and claims, the decree in every instance would the absence of argument, the point above re"fix and settle the rights of the parties" so as ferred to, I think, may well be left undecidto quiet the title of the complainant as ed in this case. against such party or "determine" precisely what the claim of the party was so that the complainant could deal with it. The difficulty which confronts the complainant in this case arises from the fact that, while the state of New Jersey has power to create such an action quasi in rem against unknown possible claimants whose names cannot be ascertained, according to the decision of this court in Hill v. Henry, it had not attempted to do so until after the Siedler suit in the year 1903. 6. The possibility that devisees of heirs and heirs of devisees of Jacob Vreeland, and grantees and mortgagees from Jacob Vreeland or from parties who derived title from Jacob Vreeland, may be in existence to-day whose interests could not be affected by the decree in 1903 in the Siedler suit, conceding that section 10 of the Chancery Act was applicable to that suit, was not the subject of any argument in this case, and therefore has not been considered. Vice Chancellor Stevens, in Hill v. Henry (66 N. J. Eq. at page 158, 57 Atl. 554), in effect expresses the opinion that such possibility would make a suit to quiet title fail even if valid proceedings could be taken under section 10 to bring in unknown and unascertainable heirs and devisees of a party named. In Silver v. Gattel, supra, Vice Chancellor Lane decided that the title offered was marketable, although the decree on which it rested was based upon a decree of this court in a suit under the tax act above re [3] 7. The bill does not allege, nor is there any proof, that the complainant holds a title which he, or any of his predecessors in title, obtained by adverse possession against all parties who claim or might claim a title or interest derived originally from Jacob Vreeland. The argument on both sides has been confined to the question whether the title, or colorable title, originating in the devise of an undivided half of the land to Jacob Vreeland in 1824, was extinguished in 1903 by the final decree in the Siedler suit which undertakes to adjudge that the defendants, including "Jacob Vreeland, his heirs, devisees, and personal representatives," have no estate or interest in the land in question, and that as to these defendants the title of the complainant is "determined, fixed, and settled and declared to be good." Without undertaking to consider this question as one open to discussion on the merits, I merely find that I am obliged to hold that the question is answered in the negative, so far as the Court of Chancery at present is concerned, by the well-considered decision in the case of Henry v. Henry. If the complainant is entitled to a different answer, he must get it from our court of last resort. The bill will be dismissed. In re LILLIAN NORDICA YOUNG'S ESTATE. March 3, 1919.) (Syllabus by the Court.) ferred to against parties named and their Court of Errors and Appeals of New Jersey. "unknown heirs, devisees, and personal representatives," without considering the nar row scope of the notice provided for by the statute. As I have already intimated, a distinction plainly may be drawn between 1. WILLS 153 EXECUTION OF WILL suits to establish tax title which are practically strict foreclosures (Mitch v. Owens, 82 N. J. Eg. 404, 89 Atl. 292) and suits to quiet title. PARTICIPATION OF BENEFICIARY-PROBATE. A woman competent to make a will has a right to the aid of any person she may think proper to select, when she desires to put her testamentary wishes in form to have legal efficiency, and if she exercises this right without selects a person she intends to make one of her improper interference or control, though she beneficiaries, that fact, in the absence of evidence showing an abuse of confidence, constitutes no reason why probate should be denied to her will. In this connection, it may be noted that the answer shows that the title offered rests upon proceedings against unknown heirs or devisees of Jacob Vreeland brought into the suit pursuant to the Chancery Act, but does not allege or point out in any way that there may be holders of interests originally derived from Jacob Vreeland other than heirs or devisees of Jacob Vreeland. The answer seems to confine the objection to the title to the fact that there were or might be other heirs of Jacob Vreeland besides those specifically named in Mr. Siedler's bill of complaint, and that these possible unknown heirs could not be brought into the suit by proceedings under section 10 of the Chancery of fraud. 2. WILLS 153-FRAUD OF BENEFICIARY— PROOF. with care the relations of the testator with her Where fraud is charged, the court will scan beneficiary, prior to and at the time of the execution of the will, for the purpose of seeing whether they, in connection with the provisions of the will, tend to prove or disprove the charge For other cases see same topic and KEY-NUMBER in ali Key-Numbered Digests and Indexes, 3. WILLS 82-PROBATE-UNNATURAL OR | Los Angeles, Cal., for respondent Imogene UNJUST PROVISIONS. Castillo. No court has power to refuse probate to a will merely because the disposition the testator has made of her property by it appears to the court to be unnatural, unreasonable, or unjust. It is as much the duty of the court to uphold the right of the owner of property to dispose of it by will as she pleases, as it is to see that she is not imposed upon in the exercise of that right. 4. WILLS 109 STANDING WILL. from a decree of the Prerogative Court afTRENCHARD, J. This appeal is taken firming a decree of the Monmouth county orphans' court dated October 19, 1916, admitting to probate a document offered as the last will of Lillian Nordica Young dated January 10, 1914, and denying probate READING AND UNDER- to an earlier will dated July 3, 1910, revoked by the will of 1914. Where it appears that the testator, a highly intelligent and educated woman, caused the draft of a will, consisting of but two typewritten sheets, to be submitted to her for examination several days prior to its execution, and that immediately before its execution, while she was slightly ill but mentally alert, she "read or looked at it about half a minute," it will be inferred that she at least scanned it sufficiently to truthfully say, as she did say, that she had read it and understood it. 5. WILLS 253-PETITION FOR PROBATE OF EARLIER WILL-JURISDICTION TO PROBATE LATER WILL. The orphans' court will be held to have had jurisdiction to probate a will begun by petition for the probate of an earlier will, it appearing: (1) That such petition alleged that a dispute ex isted as to which of the two documents thereto annexed was the testator's last will; (2) that all parties in interest under both alleged wills were before the court cited to abide the order to be made respecting such "paper or papers"; (3) that before the hearing was concluded, with the consent of the proponent and sole beneficiary. of the earlier will, an appropriate petition for the probate of the later will (which contained an express clause of revocation) was ordered filed nunc pro tunc, together with appropriate answer thereto; and (4) that the matter then proceeded to a decree, admitting to probate the later will and denying probate to the earlier will, without any objection in the orphans' court to the jurisdiction of that court. Appeal from Prerogative Court. From a decree affirming a decree of the Monmouth county orphans' court admitting to probate a document offered as the last will of Lillian Nordica Young, deceased, and We are of the opinion that the decree must be affirmed. Madam Nordica, the decedent, was a professional singer. She married George W. Young, the appellant, in London, England, in 1909. Thereafter they made their home at Deal, Monmouth county, N. J. In June, 1913, she embarked upon a concert tour "around the world." Whilst on the way from Australia to Japan she be came ill and was taken to the Torres Straits Hospital at Thursday Island. There the will of January 10, 1914, was executed. She remained there until March 28, 1914. She died at Batavia, Java, on May 10, 1914. Madam Nordica left surviving as her only heirs at law and next of kin her husband, George W. Young, and her three sisters. The will of 1910 differed from the will of 1914 mainly in that under the former the testator's husband was the sole beneficiary, whilst in the latter her sisters were the chief beneficiaries. The will of 1914 bequeathed to Maria Masino, the testator's maid, $5,000; to Ada Baldwin, her companion, $1,000: to E. Romayne Simmons, her accompanist and secretary, $30,000; to George W. Young, her husband, "his legal portion of the stock now in my name of the Securities Company." The residuary estate was devised and be queathed to her three sisters, Mrs. Imogene Castillo, Mrs. Annie Baldwin, and Mrs. Ione Walker. George W. Young, Robert S. Baldwin (nephew), and E. Romayne Simmons, were named as executors. In explanation of the bequest to her hus denying probate of an earlier will, George band, the will contained the following stateW. Young appeals. Affirmed. Harry Lane, of Jersey City, and John C. Tomlinson and Alfred C. Coxe, Jr., both of New York City, for appellant. Eugene W. Leake and William E. Decker, both of Jersey City, Robert W. Light, of Boston, Mass., and Walter W. Westall, of New York City, for respondents Robert S. Baldwin, executor, etc., and Annie Baldwin and Ione Walker, legatees. William Hamilton Osborne and George B. Astley, both of Newark, Albert G. Thorne, of New York City, and Paran F. Rice, of ment: "In this distribution of my property I am not forgetful of my husband George W. Young, to whom I have advanced over $400,000 in cash, which I estimate as the full or more than full share to which he might be entitled." The will made provision for the cremation of the body of the decedent, and contained an express clause of revocation. If therefore the will of 1914 was properly probated, the will of 1910 was properly denied probate. We think it was. It is true the attestation clause of the For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (106 A.) 1914 will is incomplete, but the testimony of the subscribing witnesses shows that it was properly executed as required by law. The first contention of Mr. Young, the appellant, is that the will was improperly probated because it did not appear that Madam Nordica had read it or was properly informed of its contents before she signed it. We think that contention is ill founded. The attesting witnesses were William Millan Lebryce, government resident at Thursday Island, and Sadie Charlotte MacDonald, matron of the hospital on Thursday Island. Reduced to narrative form, the testimony of Miss MacDonald respecting the execution of the will is, in part, as follows: "Madam Nordica was an inmate of the hos pital suffering, but not seriously, with pleurisy and pneumonia. Several days prior to January 10th (the date of the execution of the will), I heard her ask Mr. Simmons, her manager, whether her will was ready. He kept putting her off, but prior to January 10th he brought Madam a draft of a will. On January 10th, when I first went into Madam's room with Mr. Lebryce, Mr. Simmons was there. Mr. Lebryce said that Mr. Simmons had brought him the will for execution. Mr. Simmons then asked Madam to have his name 'taken out of the will.' Then Mr. Simmons went out. She requested us to witness the will, saying to Mr. Lebryce, I sent for you to witness my will,' Mr. Lebryce presented the will to Madam, and asked her if it was her will, if she read it, and if she understood it. She said, 'Yes, I have read it and I understand it.' I then placed the will in Madam's lap and she signed it. I took the will, and I said to her, 'Is this your will and your wish? And she said, 'It is my will and my wish.' I then signed my name and occupation and address. Mr. Lebryce signed his name, occupation, and address." Mr. Lebryce, the other attesting witness, in answer to interrogatories, testified: "I asked her (Madam Nordica) if she knew the contents of the document and whether it expressed her wishes regarding the distribution of her property. She said it was her will and that it expressed her wishes regarding the distribution of her property. She made this known to me by words. I do not remember her saying that she had read it, but she satisfied me that she knew what the document contained and she acknowledged it to be her will." It will be seen that this uncontradicted evidence is most persuasive that Madam Nordica understandingly published and declared that document to be her will. The appellant seemingly recognizes the force of this, for he insists that it may be "conjectured" that she was mistaken, and that when she said she had read it and un-` derstood it she referred to the draft of the will which had been presented to her several days before by Mr. Simmons, and which, the appellant argues, may have been very different from the will she executed. Considered from any and every angle, the record satisfactorily shows that this is not so, In so far as the argument involved the contention that Madam Nordica was fraudulently imposed upon by Mr. Simmons, and thus induced to execute a paper which was not her will, we think it entirely without merit. It rests upon these circumstances as its only foundation: (1) The fact that the document was drawn, or caused to be drawn, by Mr. Simmons; and (2) the fact that he received thereunder a legacy of $30,000. That Madam Nordica was entirely competent to make a will seems not to be questioned; indeed, it could not be questioned in view of the evidence. a [1] A woman competent to make a will has right to the aid of any person she may think proper to select, when she desires to put her testamentary wishes in form to have legal efficiency, and if she exercises this right without improper interference or control, though she selects a person she intends to make one of her beneficiaries, that fact, in the absence of evidence showing an abuse of confidence, constitutes no reason why probate should be denied to her will. In this case there is no evidence of improper interference or control, no evidence of. undue influence, and we do not understand that this is seriously urged. [2] Of course, where fraud is charged the court should scan with care the relations of the testator with her beneficiary, prior to and at the time of the execution of the will, for the purpose of seeing whether they, in connection with the provisions of the will, tend to prove or disprove the charge of fraud. We have done so, and find no evidence of fraud or imposition. lant is mist It may be well to remark that the appel-, en in assuming that Mr. Simmons took the initiative. It clearly appears, on the contrary, that the initiative was taken by Madam Nordica. In this connection Miss MacDonald testified: Nordica prior to January 10, 1914, about a "Q. Did you hear any discussion by Madam will? A. Yes. "Q. With whom? A. I continually heard Madam Nordica ask several days previous to that if her will was ready. "Q. Of whom did she ask that question? A. Mr. Simmons. "Q. What did he reply to that? A. Well, he appeared to me to be putting her off, always. Madam herself thought that he had a superstitious idea that if she made a will it was bad luck.".. It clearly appears that a draft of the will was made, or caused to be made, by Mr. Simmons, and was submitted by him to Madami Nordica several days before the execution of the will on January 10, 1914. On this topic Miss MacDonald testified on cross-examination: "Q. Now you had no knowledge as to whether Madam Nordica had ever seen it before or not, had you? A. Well, I know that she had had her will submitted to her some days before. * * * "Q. Prior to January 10, 1914, did you see the Madam have a will in her possession? A. I know that Mr. Simmons brought the Madam the draft of a will." It satisfactorily appears, also, that the legacy to Mr. Simmons conformed to the wish of Madam Nordica. The same witness testified: "Q. Now does that exhaust your recollection as to what occurred? A. I remember that, when I first went into the room with Mr. Leoryce, Mr. Simmons was there, and that Mr. Simmons asked Madam to have his name taken out of the will." It further apears that immediately thereafter Mr. Simmons left the room, and the will was executed in his absence. It further appears that after the will was executed it was left with Madam Nordica in her room. As a makeweight, the appellant contends that the will was unnatural and unjust. But we cannot say that it is so. We cannot say that the bequest to the testator's private secretary and accompanist was an unnatural one. He had served her for 16 years. Neither can we say that the reduction of the legacy to her husband was unjust, in view of her statement in the will that she thought it fair considering the large cash advances she had made to him. [3] But, however this may be, no court has power to refuse probate to a will merely because the disposition the testator has made of her property by it appears to the court to be unnatural, unreasonable, or unjust. It is as much the duty of the court to uphold the right of the owner of property to dispose of it by will as she pleases, as it is to see that she is not imposed upon in the exercise of that right. As showing that Madam Nordica was not imposed upon and that she understood the provisions of her will, the following testimony of Miss MacDonald on cross-examination is significant: "Q. And the paper was folded, was it not, when he (Mr. Lebryce) handed it to her; it was folded? A. When he handed it to her it was open. * ** * "Q. Did she read it? A. I can't say she read it through. "Q. What do you mean when you say she read it? A. She looked at it. "Q. She glanced at it? A. Yes. "Q. Was any time consumed in the time she glanced at it and the time she answered yes? A. No, just a short time. "Q. Just a second, just an instant? A. I couldn't say how long, but a very short time. "Q. What do you mean by a very short time, expressed in minutes or seconds? A. Well I should have thought about half a minute." [4] We have no hesitation in giving full credit and effect to that testimony. It was given by a woman of intelligence and experience, trained to close and accurate observation. She was wholly disinterested, and was uncontradicted. Now when we consider that the document that Madam Nordica was called upon to examine consisted of but two typewritten sheets; when we consider that, though slightly ill, she was a woman of education and lively intelligence, in full possession of her mental faculties, and intent upon the business in hand; when we consider that the will had been previously submitted to her after having been drawn by her order-we conclude that, during the "half a minute" in which she "read or looked at" the will, she at least scanned it sufficiently to truthfully say, as she did say, that she had read it and understood it. [5] Lastly, the appellant contends that the orphans' court had no jurisdiction to admit the will to probate. We think there is no merit in this conten tion. The mere fact that the proceeding was begun by a petition filed by George W. Young, the husband, for the probate of the will of 1910, is immaterial. The petition alleged. among other things, that "A dispute has arisen respecting the existence of an alleged will of Lillian Nordica Young, purporting to be dated January 10, 1914, the existence or validity of which is denied by the said George W. Young, a copy of which said alleged instrument is annexed hereto." The matter being then certified into the orphans' court, all beneficiaries, next of kin, and parties in interest, not only under the will of 1910, but under the will of 1914, were cited to appear "in the matter of the application of George W. Young for an order admitting to probate a paper or papers purporting to be the last will and testament of Lillian Nordica Young, deceased, and to abide the judgment and decree of said court in the premises." The beneficiaries under the will of 1914 answered alleging revocation of the will of 1910 by the due execution of the will of 1914, and subsequently, before the hearing was closed, two of the executors of the will of 1914 presented a petition for the "Q. She examined the paper? A. Yes, she probate thereof, and, with the consent of looked at it. counsel for Mr. Young, it was ordered filed "Q. He presented it so that she saw the typewritten sheet? A. Yes. 串 * * "Q. He asked her if it was her will? A. Yes. "Q. And she answeredread it and it was her will, it and understood it. A. Yes, she had and she had read |