text:
    State Board of Tax Appeals.
    BOROUGH OF ROSELAND, PETITIONER, v. ESSEX COUNTY BOARD OF TAXATION, RESPONDENT. BOROUGH OF CALDWELL, PETITIONER, v. ESSEX COUNTY BOARD OF TAXATION, RESPONDENT.
    Decided October 22, 1940.

      For the borough of Roseland, Alfred J. Grosso.

    For the borough of Caldwell, Philip D. Elliott, Edward B. McGlynn and Alfred J. Grosso.

    For the city of Newark, James F. X. O’Brien (by Joseph Ward).

    For the village of South Orange, Michael Fitzsimmons.

   Quinn, President.

These applications are disposed of together, both being based upon R. S. 54:4-49; N. J. S. A. 54:4-49,' and arising out of the same fact background. They were heard together by the board. We shall herein first consider the Roseland petition and the proofs adduced before us in reference thereto.

For each of the years 1936 and 1937, the borough of Rose-land paid county, state, and state school taxes upon the basis of aggregate valuations of ratables in the borough, which included a figure of $4,521,600 as the valuation made by the Roseland assessor for the public utility property situate therein, and owned by Public Service Electric and Gas Company. On July 29th, 1937, however, the State Tax Commissioner revised the said valuations for purposes of apportionment of the gross receipts taxes due from the Public Service Company, under the Voorhees act and supplemental legislation (Pamph. L. 1900, p. 502; Pamph. L. 1917, p. 42; Pamph. L. 1919, ch. 25), and arrived at new figures of $3,397,827.78 for the year 1936, and $3,397,046.28 for the year 1937, upon the basis of which the gross receipts taxes for those years were apportioned and recertified to the local tax collectors on September 20th, 1937. In the light of the analysis of R. S. 54:4-49; N. J. S. A. 54:4-49, hereinafter, it becomes important to note that on the same day, September 20th, 1937, the State Tax Commissioner also recertified his valuation of the same property for the year 1935, in the sum of $3,396,000. This latter valuation was the direct result of a judgment of this board, ordering the valuation for that year to be fixed in the amount stated, entered as the determination of an appeal to the State Board of Tax Appeals by the city of Hoboken from the original apportionment made by the State Tax Commissioner of Public Service Company gross receipts taxes for the year 1935. Hoboken v. State Tax Commissioner, State Board Tax Reports, 1936, p. 117, filed October 27th, 1936.

Pursuant to the directions addressed to county boards of taxation under R. S. 54:4-49; N. J. S. A. 54:4-49 (Pamph. L. 1918, ch. 236, § 510), the borough of Eoseland filed with the Essex County Board of Taxation two petitions of appeal, one on January 21st, 1938, and another in November, 1939, making application for a deduction from its total valuations of ratables for succeeding years, as utlimately revised, corrected and equalized by that body, of an amount equal to the aggregate of the reductions in valuations of Public Service property for the years 1936 and 1937, represented by the reductions contained in the valuations entered for those years by the State Tax Commissioner, as having been made in pursuance of the judgment of the State Board of Tax Appeals, aforesaid.

R. S. 54:4-49; N. J. S. A. 54:4-49, under which the claims for deduction were made, reads as follows:

“Except as to any state tax at a fixed rate provided for in sections 54:4-50 and 54:4-51 of this title, each county board of taxation in apportioning the amount of money to be raised in various taxing districts for state, state school or county purposes, after having received the tax lists and duplicates of the local assessors and having revised, corrected and equalized the assessed value of all the property in the respective taxing districts, shall deduct from the total valuations of each taxing district as so revised, corrected and equalized an amount equal to the ratables of the preceding year or years of such district represented by the reduction or all reductions made in the assessments of such districts subsequent to the apportionment of the preceding year or years in consequence of any appeal or appeals to the county board of taxation or to the state board of tax appeals, or .by reason of the decision of any court, and the total valuations as ascertained after the assessments in the various assessment lists and duplicates have been revised, corrected and equalized, and after the deductions herein provided for shall have been made, shall form the basis for the apportionment of state, state school or county taxes. When an assessment has been reduced on appeal and the decision on that appeal has been further appealed, no deduction as herein provided for shall be made with respect to the appealed assessment until the further appeal has been finally determined.”

This section was originally enacted as Pamph. L. 1910, ch. 57, which provided that:

“It shall be the duty of the county boards of taxation, in apportioning the amount of money to be raised in the various taxing districts for state, state schools or county purposes, * * * • to deduct from the total valuations of each taxing district * * * an amount equal to the ratables of the preceding year or years, of such district, represented by the reduction or all reductions made in the assessments of such district subsequent to the apportionment of the preceding year or years, in consequence of any appeal or appeals to the County Board of Taxation or to the State Board of Equalization of Taxes, or by reason of the decision of any court * * (Italics supplied.)

Prior to that act there was no remedy for the unfair situation which existed when a municipality paying county and state taxes for a certain year on a basis of a specific aggregate of ratables, ultimately collected taxes on ratables of a lesser sum, because of reductions of assessments on appeal. See, for example, Borough of Kenilworth v. Board of Equalization (Court of Errors and Appeals, 1909), 78 N. J. L. 439; 74 Atl. Rep. 480, where the court had said:

“* * * It would be quite intolerable to hold that the apportionment of state and county taxes among the municipalities is subject to change whenever the amount of ratables is altered by successful appeals of individual taxpayers. Probably it happens every year in nearly every municipality in the state that some such reductions are made. If the apportionment to the municipalities were thereby made liable to change, a final assessment would never be possible in time to permit the collection of the tax by the day fixed by law. Erequent as such changes must have been, this is the first instance of an attempt to have the apportionment altered when based on the return of the local assessor. The impracticability of the attempt has no doubt been foreseen. In such cases, either the municipality or the state and county must suffer loss, and it is more reasonable to impose the burden upon the municipality whose officer has made the error; allowance for the result of possible errors of the kind should be made in making up the municipal budget, for which contingency, among others, the statute authorizes the addition of ten per cent, to the amount appropriated for state, county, school district or local purposes.”

The new legislation was referred to by Commissioner Jess of the Hoard of Equalization of Taxes in the case of Borough of North Plainfield v. Somerset County Board of Taxation, State Board Tax Reports, 1912-1934, p. 77, where he said: “The purpose of this legislation was to provide a means by which a taxing district might be reimbursed for payments made to the state school and county funds, upon valuations which, subsequent to the fixing of their apportionment, were reduced on appeal. Eormerly, as was pointed out in Borough of Kenilworth v. Board of Equalization of Taxes, 74 Atl. Rep. 480, the loss in such cases fell upon the taxing district, and could not be recouped. It was to remedy this condition that the act of 1910 was passed * * *.”

Taking advantage of this legislation, the borough of Rose-land requested the Essex County Board of Taxation in estimating its share of county and state taxes for that year, to give it a credit for the year 1940 of the difference between the figure of public utility property valuations which entered into the determination of its county and state tax rates for the years 1936 and 1937 (i. e., the valuations originally fixed by the Roseland assessor for those years, being $4,521,600) and the reduced figures fixed for such property by the State Tax Commissioner, upon the basis of which Roseland’s share of the gross receipts taxes was actually apportioned. The Essex County Board, by a determination dated March 25th, 1940, held that the petition was filed too late to give that board any jurisdiction to allow the credit for the deductions prayed, and dismissed the application.

The appeal to this board from the county board determination is under R. S. 54:2-35; N. J. S. A. 54:2-35, providing that any action or determination of a county board may be appealed to the State Board of Tax Appeals.

The questions which are presented for determination are: .

(1) Is it too late to grant the relief prayed, as decided by the county board?

(2) May deductions be allowed under section 54:4-49, only for reductions in valuations directly ordered by a tax board or court, or may they be reductions ordered by the State Tax Commissioner because of, or in pursuance of a judgment of a tax board or court? It will be noticed that the year for which the State Board of Tax Appeals ordered a revaluation of public utility property, under the judgment hereinabove cited, was the year 1935, whereas the reductions by the tax commissioner, for which Eoseland now asks deductions, were for the years 1936 and 1937. Counsel for the borough of Caldwell takes the position that if the reductions by the tax commissioner were actually in consequence of, or the proximate result of a State Board judgment, even for another year, the statute (54:4-49) is applicable. Counsel for the borough of Eoseland contends that the statute is applicable regardless of whether there is any connection between the State Board judgment and the tax commissioner’s reductions.

(3) Are reductions in valuations of public utilities, valued for gross receipts tax apportionment purposes, within the scope of section 54:4-49?

1. We consider first the question of limitations. It seems to us that the Essex County Board misconstrued the statute in this connection. There is nothing in the legislative scheme which indicates that it is incumbent upon the various taxing districts to make formal claims upon the county boards for deductions, under R. S. 54:4-49; N. J. S. A. 54:4-49, at any time. It was made the “duty” of the county boards to make the deductions, under the 1910 act, as a matter of course. These are the deductions which appear annually in column 9 of the abstracts of ratables made up by the county boards, under R. S. 54:4-52; N. J. S. A. 54:4-52. The Essex County Board of Taxation never had its attention called to the reductions in public utility valuations made by the State Tax Commissioner, until the first Boseland petition was filed in 1938. That borough, it seems to us, was legally justified in expecting that the county board would give it the deductions requested, in the year 1939, as directed by the statute, and when it failed to do so, the borough was reasonably prompt in filing its petition in time to request the credit for the year 1940.

Beliance is had by the county board, however, in maintaining the view that it is too late to grant the relief prayed for, upon the following language in the section:

“* * * each county board of taxation * * * shall deduct from the total valuations of each taxing district * * * an amount equal to the ratables of the preceding year or years of such district, represented by7 the reductions in the assessments of such districts subsequent to the apportionment of the preceding year or years, in consequence of any appeal or appeals, &c. * * *”

The view taken by the county7 board is that the second reference to the phrase, “preceding year or years,” is to the year chronologically preceding the year in which the petitioner requests a credit by way of deductions in ratables, and that therefore, since in the present case the borough of "Rose-land asks a deduction in the total of its revised ratables in the year 1940, it is precluded from asking credit for any past reductions made prior to the apportionment of state and county taxes in the preceding chronological year, 1939. This would rule out the reductions in valuations involved in the present case, as having been made in July, 1937. Stated in another form, the view under analysis would require that reductions made in July, 1937, no matter for what year, be claimed before the county board prior to its apportionment of state and county taxes, as revised and equalized, for the ynar 1938.

Careful scrutiny of the statute will show that the foregoing view is unsubstantiated by ordinary rules of statutory construction. The use of the identical phrase, “of the preceding year or years,” in two connections within one section of an act, reasonably imports that the legislature meant the same thing in the case of each reference. Mickle v. Matlack (Supreme Court, 1839), 17 N. J. L. 86; Smith v. Minor (Supreme Court, 1790), 1 Id. 16; Waldron v. Rowe (Supreme Court, 1917), 91 Id. 71; 106 Atl. Rep. 212. Had the second such reference, which qualifies the time, subsequent to which the reduction in assessment or valuation must have been made in order to be claimed for the current year, been intended to be limited to the one year immediately preceding, chronologically, the current year in which the deduction is requested, it would have been simple for the legislature to have so indicated by saying, in lieu of the language actually used:

“* * * represented by the reduction or all reductions made in the assessments of such districts subsequent to the apportionment of the year next preceding, &c.”

There certainly would have been no need to refer to “preceding year or years." The contingency of reductions in assessments entered by an appellate board or court several years after their original assessment, is taken care of by the first reference in the act to, “preceding year or years," which so refers to the ratables which are the subject-matter of deductions claimable under the section.

The second -reference to “preceding year or years,” must have the same connotation as the first identical such reference in the section, viz., to the year or years for which the valuation was originally made, the valuation having been reduced subsequent thereto, in consequence of an appeal or appeals. Ho other time limitation is set out in the section for such an application, and a statutory tribunal ought not to read one in, in its absence, upon any supposed ground of public policy. ("We disregard also the public policy consideration in favor of our construction of the section, to wit, that the taxpayers of the taxing district should not be penalized by a failure of its fiscal officer to claim immediate credit from the county for reductions in valuations.)

It is further to be noted that on January 21st, 1938, the borough of Eoseland did file its petition with the Essex County Board, asking that the deductions in question be made in the year 1938, and that the application was denied on May 3d, 1938, without assignment of any ground. Justification for such action might be found in the circumstance that immediately following the State Board’s judgment in the Hoboken case, the city of Newark applied for a writ of certiorari to review the action of the State Board of Tax Appeals in setting aside as illegal the apportionment of gross receipts tax of the Public Service Electric and Gas Company, made by the State Tax Commissioner for the year 1935. The application of the city of Newark for such a writ was denied by the Supreme Court, April 15th, 1937, City of Newark v. State Board of Tax Appeals et al., 15 N. J. Mis. R. 368; 191 Atl. Rep. 741. It was possible that some of the affected municipalities might seek to review the tax commissioner’s valuations for the years 1936 and 1937, within eighteen months from September 20th, 1937 (time for issuance of certiorari), and therefore the Essex County Board may have felt justified in refusing to allow the deductions in 1938. But we can conceive of no justification for the continued denial of the claimed deductions in the year 1940.

We are of the opinion, accordingly, that the County Board erred in the conclusion stated in the determination appealed from, that it had no jurisdiction to grant the relief sought, because of the time limitation. As a matter of fact, there being no other objection, it had no excuse in failing to allow the deductions prayed, because the statute (section 54:4-49) provides that the county board “shall deduct,” &c. If a proper ease for a deduction arises, an affirmative and mandatory duty is placed upon the county board to allow the credit specified in computing county and state taxes.

It is furthermore the law that where a public officer is directed to do a certain act by a certain time, without any negative words restraining him from doing it afterward, the designation of the time is only directory and not a limitation of authority. Hugg v. Camden (Supreme Court, 1877), 39 N. J. L. 620, 623. If, therefore, the statute contemplated that the Essex County Board of Taxation should allow a credit to the borough of Koseland for the reductions here in question, in the first year after the reductions were made (which would be in 1938), the failure of the County Board to fulfill its duty in that regard in that year, would not excuse it from its obligation to the municipality affected, in a subsequent year, particularly where the latter calls its attention to the failure in performance of its statutory duty, and requests by petition that the credit be given in the subsequent year.

2. The next question is whether the statute, in providing for deductions on account of reductions made, “in consequence of any appeal or appeals to the county board of taxation or to the State Board of Tax Appeals,” contemplates only reductions directly ordered by a judgment of a county or state board, or whether it will include such reductions as those made by the State Tax Commissioner in the Boseland case for the years 1936 and 1937, if shown to be actually “in consequence of,” in the sense of, resulting proximately from, the State Board judgment ordering recertification of the 1935 valuations of public utility property, above referred to. It appears to us that the latter is the proper construction, for two reasons; first, if the legislature had intended the section to be limited to reductions directly ordered by county or state board judgments, it could have said so, in so many words. Instead, the more general language was used, “reductions in consequence of any appeal or appeals, &c.” Secondly, the second construction is not only more in accord with the language used in the act, but will fully carry out the remedial purpose of the act in its fullest scope, i. e., to do justice to those municipalities which have paid county and state taxes upon the basis of one set of valuations, but have collected taxes on the basis of a lower and reduced set of valuations.

3. The third question, whether reductions in public utility valuations made for purposes of apportionment of gross receipts taxes, are included in the phrase, "ratables represented by reductions made in the assessments,” is squarely answered by the Supreme Court in Read v. Board of Commissioners of Newark (Supreme Court, 1926), 4 N. J. Mis. R. 203; 132 Atl. Rep. 314, where it was held that such public utility valuations must be considered in estimating the amount of any state tax to which municipalities are required to contribute, because of the provision of section 3 of Pamph. L. 1919, ch. 25, providing for the apportionment of such taxes, to the effect that:

“Such valuations of said property in the respective taxing districts shall, notwithstanding the exemption of such property from taxation by reason of this act, nevertheless be included in and considered a part of the total amount of valuations of such respective municipalities for all other purposes, except the computation of the respective municipal tax rates.”

The actual practice of the county boards of taxation in estimating county and state tax rates on a basis of valuations inclusive of the public utility valuations, is shown by the Essex county abstracts of ratables in evidence before us, and confirms the applicability in this case of the rule laid down in the Read case, supra. By parity of reasoning, reductions in public utility valuations are contemplated as reductions in assessments, for purposes of adjusting county and state rates, under R. S. 54:4-49: N. J. S. A. 54:4-49.

Finally, it remains to consider whether the borough of Roseland has established that the reductions made by the State Tax Commissioner actually were “in consequence of the appeal” to the State Board of Tax Appeals of the 1935 apportionment of public utility taxes. The alternative contention urged by counsel for Roseland, that any reduction by the State Ta,x Commissioner whether or not in consequence of an appeal to the State Board, must be credited under section 54:4-49, is, in our opinion, groundless. Counsel for the borough argues that the duties of the tax commissioner are inherited, so far as revision of public utility valuations under Pamph. L. 1919, ch. 25, are concerned, from the former State Board of Equalization of Taxes, which was the existing appellate tax body when Pamph. L. 1910, ch. 57, forerunner of R. S. 54:4-49; N. J. S. A. 54:4-49, was originally passed, and that any reduction made by the tax commissioner is the proper subject of a claim for deductions under R. S. 54:4-49; N. J. S. A. 54:4-49. The fallacy in this argument, however, is that even under Pamph. L. 1910, ch. 57, a right to deductions was allowable only for reductions “in consequence of any appeal or appeals * * * to the State Board of Equalization of Taxes, &c.,” and therefore it cannot be argued with any consistency that a reduction by the commissioner not in consequence of an appeal is properly a subject of deduction under R. S. 54:4-49; N. J. S. A. 54:4-49.

We accordingly come back to this question. Has the borough of Roseland shown any reductions in these valuations to be “in consequence of” the aforementioned appeal to the State Board of Tax Appeals, and of its judgment dated October 27th, 1936 ?

The original Eoseland assessment figures of public utility property from 1934 to 1937, are as follows:

1934 Assessment.........$3,396,600

1935 Assessment ........... 3,396,600

1936 Assessment ........... 4,521,600

1937 Assessment ........... 4,521,600

The judgment of this board in Hoboken v. State Tax Commissioner, hereinabove referred to, set aside the valuations and apportionment made by the tax commissioner for the year 1935, and ordered a new apportionment. The judgment directed that in the case of those taxing districts where the valuations certified by the assessors for the year 1935 were identical with those for 1934, including the case of the borough of Roseland, such valuations should be adopted by the commissioner in his reapportionment; but that where a different valuation had been certified for 1935 than for 1934, the commissioner should inquire into and revise said 1935 valuations, taking into account the valuations for 1934 (as of October 1st, 1933) and the inventories as of October 1st, 1933, as well as the inventories and property as of October 1st, 1934. The principle clearly implicit in this judgment is an endorsement by the board of the 1934 assessment figures. With this in mind, it is to be noted that, according to the records in the tax commissioner’s office, he carried out the mandate of the State Board judgment by revising all of the figures for 1935, on July 29th, 1937 (apparently having waited until the disposition by the Supreme Court of the application by the city of Newark for a writ of certiorari from the judgment of the board, which took place on April loth, 1937, as hereinabove pointed out). On the same date, July 29th, 1937, the commissioner entered his figures revising the assessor’s valuations of these properties for the years 1936 and 1937. The final figures for the three years, all of which were recertified by the commissioner September 20th, 1937, are as follows:

1935 $3,396,600.00

1936 3,397,827.78

1937 3,397,046.28

It seems to us that there is no fair alternative to the conclusion that the valuations thus arrived at for 1936 and 1937 (involving reductions from the original assessors’ figures for those jrears in the aggregate of $2,248,325.94), being practically identical with the 1935 figure arrived at by the commissioner in obedience to the mandate of the State Board judgment, and made and certified on the same dates as the 1935 figure, were determined “in consequence of” the appeal of the 1935 apportionment to the State Board, and that therefore, so far as the borough of Boseland is concerned, its petition for a credit of $2,248,325.94 in estimating its county and state tax rate, should be granted.

With respect to the application of the borough of Caldwell, a different situation is presented. It, too, filed an application for deductions with the Essex County Board of Taxation, arising out of reductions made by the State Tax Commissioner in valuations of Public Service Company property, which, as in the case of the Eoseland application, was denied by the County Board. Its application, however, includes a claim for reduction of the 1935 valuation, as well as in that for the years 1936 and 1937.

The Caldwell original assessment figures are:

1934 $140,000

1935 160,523

1936 185.000

1937 185.000

The valuations were reduced by the State Tax Commissioner as follows:

1935 $140,000

1936 155,135

1937 158,050

It will be noted that the 1936 and 1937 figures arrived at by the commissioner, while made and certified on the same date as his 1935 valuation (the dates being identical with those in the Roseland case) are not anywhere near the 1934 assessment, which was approved in the judgment of the State Board. Nor is there any proof in the record which would show a change in the value or nature of the utility property situate in Caldwell, for the years 1936 and 1937, as compared with 1934 and 1935. Under the circumstances we must conclude that the borough of Caldwell has not shown that the reductions for the years 1936 and 1937 were “in consequence” of the appeal to the State Board in the 1935 case, and dismiss its claim for the reductions in those years. So far as the reduction in the 1935 valuation is concerned, a credit therefor is clearly allowable as resulting- directly from the judgment of the State Board, cited supra, entered in the appeal of the 1935 apportionment.

Since the hearing of these applications thé Essex County Board of Taxation has fixed the county and state rates for the 3rear 1940. Judgment will therefore be entered herein ordering that the county board, in determining the amount of money to be raised in the boroughs of Roseland and Caldwell for state, state school, or county purposes for the year 1941, shall deduct from the total of revised, corrected and equalized ratables of said taxing districts, in addition to such other deductions to which they may be entitled, the following sums:

as to borough of Roseland......... $2,248,325.94

as to borough of Caldwell......... 20,523.00

Judgments accordingly.


source: Caselaw Access Project

author: Quinn, President.

license: Public Domain

text:
    State Board of Tax Appeals.
    HACKENSACK WATER COMPANY, PETITIONER, v. TOWNSHIP OF NORTH BERGEN, RESPONDENT.
    Decided October 22, 1940.
    For the petitioner, Miüon, McNulty & Augelli (by John Milton and Joseph Keane).

    For the respondent, Nicholas 8. Schloeder.

   Quinn, President.

Petitioner operates a large water distribution system in the northeastern area of the state, its reservoirs and pipelines being spread throughout many municipalities. These appeals involve the determination of the true value of the personal property of the company situate in the respondent taxing district on October 1st, 1937, and October 1st, 1938.

The assessment for each of the tax jrears in question was made by the taxing authorities at $1,500,000. 'Appeals for a reduction thereof was dismissed by the Hudson County Board of Taxation.

Before proceeding to a detailed consideration of the proofs, we refer briefly to the principles which must control us in appraising them. The assessments enjoy the presumption of correctness, not in any substantive sense, but merely in the aspect of making it incumbent upon the taxpayer to adduce proofs of value, which in turn must be met by countervailing proofs by the city sufficient to outweigh those of the petitioner, if the assessment is to be sustained. New Jersey Bell Telephone Co. v. City of Camden (Supreme Court, 1939), 122 N. J. L. 270; 4 Atl. Rep. (2d) 705.

The proofs before us must be appraised, furthermore, with respect to their evidentiary value upon the issue as to the true value of the property in question, in the statutory sense, i. e., upon the criterion as to the price in money which a willing seller could obtain for the property from a willing buyer at a fair sale as of the assessing date, under private contract. Turnley v. Elizabeth (Supreme Court, 1908), 76 N. J. L. 42; 68 Atl. Rep. 1094; Universal Insurance Co. v. State Board of Tax Appeals (Supreme Court, 1937), 118 N. J. L. 538; 193 Atl. Rep. 915. And this standard has been held applicable to the valuation of tangible personalty in use for utility purposes, as herein. New Jersey Bell Telephone Co. v. Newark (Supreme Court, 1937), 118 N. J. L. 490; 193 Atl. Rep. 844; affirmed (Supreme Court, 1940), 124 N. J. L. 451; 12 Atl. Rep. (2d) 675; New Jersey Bell Telephone Co. v. Camden, supra.

In the present case, the usually applicable presumption of correctness of the assessment, in the limited sense noted above, is dissipated because of the rise in the assessment of the property from a valuation of $1,050,000 in the years preceding the tax years now under appeal, to the figure of $1,500,000 under attack in these proceedings, unexplained by anything in respondent’s proof. Skouras Theatres Corp. v. State Board of Tax Appeals (Supreme Court, 1939), 123 N. J. L. 52; 8 Atl. Rep. (2d) 72; New Jersey Bell Telephone Co. v. Camden, supra (at pp. 272, 274). There is positive proof herein, adduced by petitioner and unrebutted by the taxing district, that there was no substantial change in the value of the property for the years 1938 and 1939, from that of the years immediately preceding.

Petitioner offered specific expert testimony as to the true value of its tangible personalty through Mr. Emile J. Pricker, assistant to the president of the company, whose testimony as to the reproduction cost of the property is fortified by thirty-two years of association with the company, and the attendant experience with the actual building, replacement and repair of a substantial part of petitioner’s system. Moreover, this witness was qualified at the hearing as particularly expert in the waterworks industry by reason of his activity in the national trade association devoted to the business, his close study of the literature in the field, and an active association for many'- years with valuation engineers and operators specializing in waterworks utilities. He valued the property under appeal, as of the assessing dates for each of the years here involved, at $940,000, representing his opinion as to what a willing buyer and seller would agree upon, after considering reproduction cost, book cost, the condition of the property upon the assessing date, the fact that the property was a part of a going concern, and the particular use to which it was being devoted. In the absence of evidence of sales of similar property, considerations such as those to which the witness referred are competent and essential to a sound determination of true value.

Upon cross-examination, the witness furnished detailed estimates for the replacement of the various species of property in question, consisting of pipe of various sizes, meters, service connections, hydrants, valves, and other property, based upon depreciated cost new, and allowing for trenching and engineering expense. The witness did not, however, value pumps in the pumping station of the company, conceiving them as realty, not personalty. The assessor has testified that these pumps were assessed as personalty, not realty, and valued them at $48,732. In the absence of any proof as to the precise nature of the pumps, or of their location, degree of affixation, or adaptation to the structure in which situated, we must accept the presumption that the assessor correctly assessed them as personalty.

In contrast to the outstanding qualifications of petitioner’s valuation expert, the witness through whose testimony the respondent attempted to meet the force of the former’s testimony, was the township assessor, who, while technically competent to testify as such, possesses none of the- special qualifications requisite to trustworthy appraisal in this specialized field of utility valuation. He has been an assessor for eight years, but has never had any experience as an engineer, builder or contractor, or in the sale or purchase of property of the character under appeal. He testified from sheets of paper containing calculations ready made, with which he did not appear very familiar, and stated that his estimates of costs and depreciation of petitioner’s properties were based upon pamphlets, text books, and adjudicated cases, none of which, however, were particularized. His conclusion was that the sound value of the property was $1,451,268. While a witness can qualify as a valuation expert through study as well as experience, nothing has been produced in this case to warrant the fair conclusion that this witness is an expert, of any character, in respect of waterworks property. His testimony carried little or no probative weight.

The only other proof adduced by the taxing district was that of the township engineer, in an attempt to rebut Mr. Fricker’s estimate of excavation costs for new piping at $1 for earth and $6 for rock excavation. He testified that in his experience such costs ran approximately twice the amounts given by Mr. Fricker. The experience of this witness, however, was limited to excavations between 1925 and 1930, at the peak of costs, while that of petitioner’s witness related to actual and current experience with the very property under appeal.

Our conclusions in this case have been fortified by the consideration that none of the witnesses in the case conceived that a valuation including all of the expenditures (i. e., excavation, repaving, engineering) necessary to enable a water company to operate, and considered as elements of reproduction cost by one or another of them, must, to some extent, be deemed to measure the value of the franchise to occupy the public streets, roads, and places in the respondent taxing district, without which the entire plant would be of no value but salvage. But the franchise of petitioner is specifically excluded from taxation in any manner other than under the act for the taxation of the gross receipts of public utilities occupying public streets and highways, in lieu of any and all taxes upon the franchises of such corporations. Pamph. L. 1900, ch. 195, § 1, as amended by Pamph. L. 1938, ch. 7, § 1. Since reproduction cost is, in any event, admissible only as some evidence of market or true value, the addition to the cost of the tangible property of a water company, of expenses of installation, excavation, and engineering, requisite to enable it to operate as an enfranchised enterprise, would seem partly to measure the value of such franchise.

To such extent, difficult though it may be to calculate in the absence of proof not here adduced, a discount must be made from total enterprise replacement cost, in order to avoid the direct taxation of the franchise prohibited by the act cited above. In Long Dock Co. v. State Board of Assessors (Supreme Court, 1909), 78 N. J. L. 44 (at p. 53); 73 Atl. Rep. 53, the court said, anent a problem directly analogous:

“'The difference, however, between the market value of land by reason of its availability for railroad purposes generally, and the value imparted to such land by its specific use under a railroad franchise, is so great as to be fundamental. The latter value is special and peculiar to the individual user of the land proceeding as it were from within, whereas the former is general and is based upon external conditions susceptible of universal application as a legal measure. A single foot of submarine cable, owing to its peculiar use under the franchise of its operating company, has thereby imparted to it a value many thousand times greater than such foot of cable possesses when estimated at its market value. The same is true of the tracks of a railroad company and is also true of its terminal lands. Our General Tax act (Pamph. L. 1903, p. 398) practically defines the market value of land as The price it would sell for at a fair and tona fide sale by private contract/ In the valuation of the terminal lands of the prosecutors it was the duty of the State Board under the act of 1888 to appraise them at their market value from the testimony/5

On the other hand, that value which the property under appeal possesses as an increment due to its assembly and availability for special use, aside from the owner’s possession of a franchise for such use, must be taken into consideration, in the determination of its true value. Long Dock Co. v. State Board of Assessors (Supreme Court, 1916), 89 N. J. L. 108, 111; 97 Atl. Rep. 900.

After a careful consideration of all the proof, subject to the foregoing observations, we conclude that the true value of the property in question did not exceed, for either the year 1938 or 1939, the amount of the assessment for the property made by the respondent taxing district for the year 1937, or $1,050,000.

The judgment of the Hudson County Board of Taxation will therefore be reversed and the assessments ordered reduced to the said sum of $1,050,000 for each of the years under apppal.


author: IIeer, A. M.

text:
    Victor Bednarik, petitioner, v. Dorothy Bednarik, defendant.
    [Decided October 15th, 1940.]

      Mr. Augustus G. Nash, for the petitioner.

      Mr. Jerome J. Sonnabend, for the defendant.

      Mr. Israel B. Greene, amicus curice.

   IIeer, A. M.

Petitioner’s petition for divorce against defendant on the ground of adultery has been met by an answer denying his charges and by a counter-claim seeking a decree of divorce against him. Petitioner alleges that a child born to defendant on August 27th, 1938, is not his child. This charge is specifically denied by the answer. Petitioner’s present application, made before reference under rule 128e, is based upon an affidavit in which he sa3^s: “As the parentage of said child is involved in this suit Í feel that it is absolutely essential to the trial of the same, that one or more blood grouping tests be made of myself, wife and said child in order to determine the parentage.”

The blood grouping tests to which petitioner seeks to subject defendant and the child, together with himself, in an effort to prove that he is not the father of the child, are of comparatively recent development. According to medical authority, hereditary characteristics are determined by units called “genes” which are. said to occur in pairs in rod-like chromosomes of the nuclei cells. The human blood groups follow the chromosome theory. The blood groups, of which there are four, are predetermined by the presence or absence in the chromosomes of two genes called “A” and “B.” Absence of both “A” and “B” is indicated by “0.” Because each somatic cell possesses two of these genes (one from each parent) there are six possible genetic formulae, “00,” “AA,” “AO,” “BB,” “BO” and “AB.” However, since the blood of an “AO” individual is routinely indistinguishable from that of an “AA” individual, and since similarly “BO” blood is routinely indistinguishable from “BB” blood, we have only four demonstrable types of blood (the phenotypes) namely “0,” “A,” “B” and “AB.” There is a wealth of literature on this subject, some of the authorities being gathered in the footnote below.

It is said that the requisite series of blood grouping tests cannot identify a person as the parent of a child, but may eliminate such person as a possible parent. The tests will either answer “no,” or give no answer at all. For example, if a man is charged with being the father of a certain child, and if the tests show that his blood belongs to group A, the mother’s to group AB, and the child’s to group B, the possibility of his being the father of the child is eliminated, and his innocence of the charge established. On the other hand, if the tests show that his blood belongs to group 0, the mother’s to group AB, and the child’s to group A, he is not excluded, although the tests in that case will not constitute proof that he is in fact the child’s father. According to the authenticated records it is now possible by these blood grouping tests to detect approximately thirty per cent, of all false accusations of paternity.

We have no reported cases in Hew Jersey in which blood grouping tests have been ordered by the court, for any purpose. But there are decisions in other jurisdictions which should be noted.

The first reported case involving such blood grouping tests seems to be Commonwealth v. Zammarelli (1931), 17 Pa. D. & C. 229. There the prosecutrix, an unmarried girl, obtained an indictment against the defendant for fornication and bastardy. In defense, the defendant produced a pathologist who made blood tests and testified that the defendant could not possibly have been the father of the prosecutrix’ child, because the defendant was type “0,” the mother type “A” and the child type “B.” Apparently disregarding this evidence, the jury found the defendant guilty, and the verdict was upheld by the trial court. On appeal, the county court reversed the decision and granted a new trial because of the contrary uncontroverted expert testimony based upon the blood grouping tests. But in Commonwealih v. Morris (1984), 22 Pa. D. & C. 111, a similar case, the court denied an application to compel the prosecutrix to submit to a blood grouping test because of lack of legislative authority.

Commonwealth v. Visocki (1935), 38 Pa. D. & C. 103, was in keeping with the final result in the Zammarelli Case. This was an action for desertion and non-support of a wife and minor child. The wife was twenty years old, the husband forty-two, and the child was born in wedlock approximately seven months after the marriage. The husband claimed that he had never had sexual intercourse with his wife because he had heard on the evening of their marriage that she was pregnant. Two physicians called by the defendant testified that they had made blood grouping tests of him, the mother, and child and that it was impossible for the defendant to be the father of the child. The case was dismissed.

In Commonwealth v. English (1936), 133 Pa. Super. 161; 186 Atl. Rep. 398, the defendant was prosecuted for fornication and bastardy. The defendant’s application for an order directing prosecutrix to submit herself and her child to blood grouping tests was denied. On appeal, the court’s action was affirmed, as not an abuse of discretion, the court saying:

“While * * * such an operation is not regarded as entailing any serious danger to the health of the patient, it cannot be said that there is no danger for there is always some risk of infection. Until the legislature finds that blood grouping tests have attained such scientific standing as to possess probative value as to paternity * * * the courts have not the power in a criminal case such as this to compel the prosecutrix or other witness to submit her body for blood tests.”

In State v. Welling (1936), 6 Ohio Op. 371, a bastardy proceeding, an application by defendant for the making of blood grouping tests was granted.

Tn the recent case of State v. Wright (1988), 150 Ohio App. 191; 17 N. E. Rep. (2d) 428, the prosecutrix, an unmarried female, charged the defendant with being the father of her unborn child. After the birth of the child the case came on for trial. Blood grouping tests were made of the mother, child and putative father. The state excepted to the admission of this evidence. The witness testified on the basis of the tests made that the defendant could not possibly be the father of the child. Nevertheless the jury gave a verdict of “guilty.” A new trial was granted. The Court of Appeals for Franklin county held that there was no error in admitting the evidence under such safeguards as should surround the testimony of every expert witness, and that there was no abuse of discretion in setting aside the verdict, which in the judgment of the trial court was against the weight of the evidence.

Tn State v. Damm (S. D.), 266 N. W. Rep. 667, the court-said :

“It is our considered opinion that the reliability of the blood test is definitely and, indeed, unanimously established as a matter of expert scientific opinion entertained by authorities in the field.”

In Beuschel v. Manowitz (1981), 272 N. Y. S. 166, which was an action for damages for carnal assault, Steinbrink, J., granted an order for the taking of blood grouping tests, acting under section 306 of the Civil Practice act. On appeal, the order was reversed, the court saying:

“Plaintiff may submit or not to the taking of her own blood, but it plainly determines nothing. She asserts, and no one would gainsay it, that she is the mother of the child.”

The appellate court held that section 306 of the Practice act did not apply to such a cause of action. But in 1935 the New York statute was amended so as to confer jurisdiction in similar eases where definite exclusion is established. See In re Swahn’s Will (1936), 285 N. Y. S. 234; 158 Misc. 17.

In Arais v. Kalensnikoff, a case heard by the Superior Court of Los Angeles, the defendant, a Russian seventy years of age, was charged by plaintiff, a Spanish woman, with being the father of her illegitimate daughter. Mrs. Aráis testified that she had been married twice, that shg was separated from her second husband, and that since the time of that separation she had not had sexual relations with any man other than the defendant. The defendant denied ever having had sexual relations with the plaintiff, and both he and his wife testified that he had been impotent for a number of years. At defendant’s request and with plaintiff’s consent blood grouping tests were made of the plaintiff, her daughter and the defendant. According to the tests, both plaintiff and defendant belonged to group “0” and the child to group “B.” According to such grouping it was impossible for the defendant to have been the father of this child, but in spite of this evidence from an eminent physician the trial court found that the defendant was the father of the plaintiff’s child. On May 5th, 1937, the District Court of Appeals, Second Appellate District, reversed the trial court. Arais v. Kalensnikoff (1937), 89 Calif. Dec. 537; 67 Pac. Rep. (2d) 1059. In his opinion, Judge McComb said:

“In passing, our research discloses that the blood grouping test requires only a few drops of blood, is painless, and in no way prejudicial to health.”

But the Supreme Court, on appeal, upheld the action of the trial court and handed down an opinion holding that “there is ample evidence to support the finding of parentage.” 95 Cal. Dec. 4, 9; 74 Pac. Rep. (2d) 1043, 1047. Rehearing denied, 95 Cal. Dec. 45.

The law in this country on the subject of blood grouping tests, as evidenced by the reported adjudications, has not been developed comparably with that in some of the European jurisdictions. See remarks of Wingate, Surrogate, In re Swahn’s Will, supra. All of the law review articles and medico-legal literature on the subject seem to favor the use of the blood tests, and to take the view that these tests are fully accredited and entitled to great if not conclusive evidential force. But because of their comparative novelty many courts have shown reluctance to accept the results of such tests as reliable evidence, just as in the case of every new scientific discovery. “Just wlien a scientific principle or discovery crosses the line between the experimental and demonstrable stage is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.” Frye v. U. S., 54 App. D. C. 46; 293 Fed. Rep. 1013; 34 A. L. R. 145; see 86 A. L. R. 616.

It may be remarked incidentally that our courts have shown a liberal and progressive attitude toward the introduction in evidence of scientific discoveries as an aid to the ascertainment of the truth. For example, in State v. Cerciello, 86 N. J. Law ,300; 90 Atl. Rep. .1112, our Court of Errors and Appeals, in speaking of the admissibility of evidence of fingerprints, said:

“In principle its admission as legal evidence is based upon the theory that the evolution in practical affairs of life, whereby the progressive and scientific tendencies of the age are manifest in every other department of human endeavor, cannot be ignored in legal procedure, but that the law in its efforts to enforce justice by demonstrating a fact in issue, will allow evidence of those scientific processes, which are the work of educated and skillful men in their various departments and apply them to the demonstration of a fact, leaving the weight and effect to be given to the effort and its results entirely to the consideration of the jury. Stephen Dig. Ev. 267; 2 Best. Ev. 514.”

Petitioner’s application, therefore, should not be denied merely because there have been no precedents in this state in which such applications have been granted. Yet a number of reasons present themselves in limine why the application should not be granted, at least prior to final hearing. Some are mentioned by Advisory Master Van Winkle in Gattoni v. Gattoni, 17 N. J. Mis. R. 245; 8 Atl. Rep. (2d) 277. See, also, the unpublished opinion of Walker, V. C., in Butler v. Butler, Dk. 27 p. 746. The rule is stated in 9 R. C. L. 174 § 13, as follows:

“A court will not interfere in this way to enable a party to search out evidence or witnesses, or, as it is sometimes expressed, the remedy by discovery or interrogatories will not be permitted * * * for fishing purposes.”

See note 58 A. L. R. 1263.

In my judgment, however, it would serve no useful purpose to deny petitioner’s application upon technical grounds, since no doubt he would renew it upon the final hearing, so that it seems best to deal with it on the merits at this time.

Petitioner bases his motion upon the 1939 statute, R. S. Cum. Supp. 2:101-3 (N. J. S. A. 2:99-4), which is the second of two sections comprising chapter 221 of the laws of 1939, entitled “An act concerning evidence and witnesses, and supplementing subtitle 11 of title 2 of the Revised Statutes.” N. J. S. S. 1940 pp. 86, 87.

The parties have stipulated that the medical data heretofore referred to in the footnote shall be considered and taken to be sufficient factual proof of the validity and evidential value of the blood grouping tests. I doubt if such a stipulation ought to be accepted as a basis for ordering such tests to be made (assuming that there were no constitutional or legal objections thereto) in view of the equivocal sanction accorded by the legislature, as hereinafter noted, and of the complete absence of judicial consideration in New Jersey as to the probative value of such evidence. However, since the petitioner’s application is hereby denied upon the constitutional and legal grounds hereinafter set forth the stipulation may safely be accepted for the purposes of the motion.

The statute reads as follows:

“1. Whenever it is relevant to the cause of the prosecution or the defense in a proceeding involving parentage of a child, the trial court, by order, may direct that the mother, her child and the defendant submit to one or more blood grouping tests to determine whether or not the defendant can be excluded from the probability of being the father of the child. The testimony of experts to the result of the test shall be receivable in evidence, but only in cases where definite exclusion of parentage of the defendant is indicated. The tests shall be made by duly qualified physicians, to be appointed by the court. Such experts shall be subject to cross-examination by both parties after the court has caused them to disclose their findings to the court or to the court and jury. Whenever the court orders such blood grouping tests to be taken and one of the persons thus directed shall refuse to submit to such tests, such fact shall be disclosed upon the trial in the discretion of the court.
“2. Whenever it shall be relevant in a civil action to determine the parentage or the identity of any child or other person, the court, by order, may direct that any party to the action and the person whose parentage or identity is involved submit to one or more blood grouping tests, to be made by duly qualified physicians under such restrictions and directions as the court or judge shall deem proper. Whenever such test is ordered and made, the testimony of the experts to the results thereof, subject to cross-examination as in section one, shall be receivable in evidence, but only in cases where definite exclusion is indicated. The order for such blood grouping tests also may direct that the testimony of such experts and of the persons so to be examined be taken by deposition. The court shall determine how and by whom the costs of such examinations shall be paid.
“3. This act shall take effect immediately. Approved July 18th, 1939.”

The statute may be taken to be a qualified legislative sanction for the use of blood grouping tests as possibly evidential of the fact of non-paternity where a positive reaction is secured, although the statutory phrase “to determine whether or not the defendant can he excluded from the probability of being the father of the child,” contained in the first section, and the provisions in both sections to the effect that the ordering of the tests shall be entirely within the discretion of the court, would seem to indicate that the legislature intended that the courts should adjudicate as to whether such tests are of any probative value, and if so of what degree of probative value. Indeed, no legislation was needed to empower the courts to determine snch questions.

So far as the second section of the statute is concerned, the only enlargement of the court’s jurisdiction thereby granted seems to be the implied authorization to enforce an order for the tests to be made in spite of the refusal of a party or of a third person to undergo them. It will be noted that section 1, which undoubtedly applies to bastardy and filiation proceedings, provides for the making of blood grouping tests where relevant “to the case of the prosecution or the defense in a proceeding involving parentage of a child,” and authorizes the court to order “that the mother, her child and the defendant submit to one or more blood grouping tests to determine whether or not the defendant can be excluded from the probability of being the father of the child,” and that the further provision of this section reads that “whenever the court orders such blood grouping tests to be taken and one of the persons thus directed shall refuse to submit to such tests, such fact shall be disclosed upon the trial in the discretion of the court.” Section 2, under which the present application is made, provides for similar examination in a civil action “whenever it shall be relevant * * * to

determine the parentage or the identity of any child or other person.” Here the statute authorizes the court to “direct that any party to the action and the person whose parentage or identity is involved” submit to one or more blood grouping tests. There is no provision in this section as to what is to be done if the persons ordered to submit to the tests refuse to do so. The first section recognizes by implication the right of any person to decline to submit to the tests. It cannot reasonably be thought that the omission of a similar provision in the second section was accidental. The only tenable conclusion, it seems to me, is that the legislature by the first section was at pains not to infringe upon the privilege against ■self-incrimination or the constitutional right of personal privacy in criminal and gmsi-criminal proceedings, but so far as civil proceedings are concerned recognized no such limitations in empowering the court in proper cases (that is, in cases where such immunities are outweighed by considerations of public policy) to make such an order and to enforce it by appropriate process. Authority to make' an order implies authority to enforce it. 11 Am. Jur. tit. “Courts” 373 § 174.

Examinations under order of this court to determine questions of impotency and the like are not made in the course of the common law and are not subject to resistance under constitutional privilege. Union Pacific Railway Co. v. Clara L. Botsford, 141 U. S. 250; 35 L. Ed. 734. But the court’s jurisdiction to decree divorce is statutory, and its practice and procedure are subject to constitutional limitations. We are therefore confronted with the objection urged on behalf of defendant for herself and for the child that an order for the making of blood grouping tests in this ease would amount to an invasion of their natural and constitutional privileges.

The immunities which are thus urged are not confined to criminal cases. Counselman v. Hitchcock, 142 U. S. 547; 35 L. Ed. 1110; Boyd v. United States, 116 U. S. 616; 29 L. Ed. 746; Marsh v. Marsh, 16 N. J. Eq. 391, 397. In a suit for divorce on the ground of adultery the defendant cannot be forced to give evidence against himself except as to the fact of marriage. This was the law before the enactment of our statute now R. S. 2:97-9 (N. J. S. A. 2:97-9), providing that “No husband or wife in. any action or proceeding for divorce on account of adultery shall be compelled to give evidence for the other, except to prove the fact of marriage.”

Whether a compulsory order for the taking of blood grouping tests is in violation of the privilege against self-incrimination has been debated elsewhere without any unanimity of opinion. The subject has been discussed in law review articles on the basis of analogical reasoning, but none of these articles have referred to any controlling decision. Out of the large mass of material published the following cases may be selected as indicating the divergence of judicial thought on the subject.

Perhaps the leading case is State v. Height, 117 Iowa 6.50; 91 N. W. Rep. 935; 5:9 L. R. A. 437. In that case the court had before it a closely related problem. The defendant was accused of statutory rape of a child ten years of age. In order to prove his guilt the state offered in evidence the testimony of a physician who had made a compulsory physical examination of the accused while in jail and against his will to determine whether he was afflicted with a venereal disease similar to that with which the prosecutrix had been infected. The court held that such an examination by a physician under the direction of the prosecutor constituted an unlawful search and seizure, a denial of the privilege against self-incrimination, and a violation of due process.

In State v. Tonn, 196 Iowa 94; 191 N. W. Rep. 530, the Iowa Supreme Court was faced with the decision in the Height Case. The question was whether incriminating literature obtained through an unlawful search and seizure was admissible in evidence in a criminal prosecution. The majority opinion in the Tonn Case took the view that the true basis of the decision in the Height Case was that compelling a defendant to submit to a physical examination and requiring him to furnish evidence against himself was a denial of the privilege against self-incrimination.

While the varying constitutional and statutory provisions, both federal and state, secure in one form or another the privilege against self-incrimination, none of them define or interpret the meaning of the term self-incrimination. This has been left entirely to the courts. A substantial number of courts have given definitions broad enough to include compulsory blood grouping tests within the prohibition.

The following cases have cited or followed the Height Case: In People v. McCoy (N. Y., 1873), 45 How. P. 216, the defendant was charged with being the mother of a bastard child and of murdering it when born. While in jail, under arrest, upon order of the coroner, she was examined by two doctors. The testimony of these doctors that the accused had recently been delivered of a child was excluded as a denial of the privilege against self-incriminatidn; but in the later case of People v. Sallow, 100 Misc. 447, 458; 165 N. Y. S. 915, 921, the court said: “The rule of People v. McCoy, in so far as it held the evidence as to the condition discovered by compulsory physical examination of the defendant was not admissible in evidence, must be considered overruled.” The opinion in People v. Sallow, supra, follows the view of the United States Supreme Court in Holt v. United States, 218 U. S. 215; 54 L. Ed. 1021, that the privilege against self-incrimination protects the defendant against extorting from him testimonial evidence, and does not apply to a physical examination.

The Height Case has exercised a strong influence on subsequent decisions. Three Missouri cases (State v. Newcomb, 220 Mo. 254; 119 S. W. Rep. 405; State v. Horton, 247 Mo. 657; 153 S. W. Rep. 1051, and State v. Matsinger, 180 S. W. 256) where the same issue was involved, reached a similar result, citing the Height Case in holding that the introduction of the medical testimony is a violation of the privilege against self-incrimination. In Commonwealth v. Valeroso, 273 Pa. 213; 116 Atl. Rep. 828, 830, the court referred to the Height Case as containing an admirable discussion of the general question of the immunity from self-incrimination. The Arkansas court in Bethel et al. v. State, 178 Ark. 277; 10 S. W. Rep. (2d) 370; 21 S. W. Rep. (2d) 176, after considering the Missouri cases and quoting from that part of State v. Newcomb, 220 Mo. 54, 66; 119 S. W. Rep. 405, 400, which cites the Height Case, came to the same conclusion that a compulsorjr physical examination of a person accused of rape is inadmissible, as it is a denial of the privilege against self-incrimination. The majority opinion in the Michigan case of People v. Corder, 224 Mich. 274; 221 N. W. Rep. 309, followed the Height Case and carried it on to an extreme application.

A case closely analogous to the case at bar is State v. Gatton (1938), 60 Ohio Appeals 192; 20 N. E. Rep. (2d) 265, Case No. 1043, where the court was faced with the issue in its most direct form. The defendant was charged with operating a motor vehicle in the state of intoxication. After his arrest, request was made to him to submit to a blood test or urine analysis to determine the amount of alcohol in his system. This he refused to do, but the test was made. At the trial the evidence was admitted over the defendant’s objection. In sustaining the trial court, the appellate court said:

“It will be observed in the instant ease that the evidence offered was not required to be given by the defendant himself, but was given by the deputy sheriff and the doctor called by the deputy to make the examination of the defendant. We are unable to observe any merit in the defendant’s claim that the introduction of such evidence violated his constitutional rights, and we believe, and hold, that the constitutional inhibition against self-incrim¡nation relates only, as stated by Greenleaf, to disclosure b3r utterance. No such disclosure was required of the defendant in this case.”

in the Gatton Case the court took a different view from that of the earlier Ohio case of Booker v. Cincinnati, 5 Ohio Opin. 432, in which the court held that the urine analysis test was in violation of the privilege and found that the privilege was not waived.

Perhaps the most recent case on the subject to date is the case of State v. Duguid, 7S Pac. Rep. (2d) 435, where evidence of a urine analysis taken after an arrest was admitted, showing that it contained two milligrams of ethyl alcohol per cubic centimeter and that such evidence was clear evidence of intoxication. (The defendant was charged with driving his automobile while intoxicated.) The jury returned a verdict of guilty and the trial court granted a new trial on the ground that the physician’s testimony was a violation of the defendant’s privilege against self-incrimination. Upon appeal, the Supreme Court reversed the trial court’s ruling upon the ground that the accused had waived his protection under the privilege by consenting to the taking of the urine analysis. While the appellate court held that the defendant consented to the test, it nevertheless expressed doubt as to whether the constitutional provision against self-incrimination was applicable because it regarded the urinal analysis as real evidence, rather than testimonial evidence. The court quoted with approval the language of the Louisiana court in State v. Graham, 116 La. 779, 782; 41 So. Rep. 91, to the effect that the tendency of the more modern cases is to restrict the constitutional privilege against compulsory self-incrimination to confessions and admissions proceeding orally from the accused, and to open the door to all kinds of “real” evidence or proof of physical facts which speak for themselves.

In State v. Cerciello, 86 N. J. Law 309; 90 Atl. Rep. 1112, there is a statement that the police cannot lawfully fingerprint an accused person against his will. Mr. Justice Min-turn, writing the opinion, said that State v. Miller, 71 N. J. Law 528; 60 Atl. Rep. 202, “is also authority for the proposition generally conceded by the trend of judicial authority, that the condition upon which such testimony is received is that so far as the defendant is concerned he shall not have involuntarily contributed to its production, so as to cause him in legal effect to serve as a witness against his will to furnish testimony to convict himself under the rule adopted in this state as part of the common law. State v. Zdanowicz, 69 N. J. Law 619; 55 Atl. Rep. 743. We do not find from an inspection of the testimony here, that this legal safeguard was contravened in the case of this defendant.” To the same effect, see Underhill, “Criminal Evidence” 1133. But in Bartletta v. McFeeley, 107 N. J. Eq. 141; 152 Atl. Rep. 17; affirmed, 109 N. J. Eq. 241; 156 Atl. Rep. 658, Vice-Chancellor Bigelow characterized the language of Mr. Justice Minturn in the Cerciello Case as ohiter dicta, saying that “the passage quoted above does not establish the law as to fingerprinting. Neither the Miller Case nor the Zdanowicz Case is authority for the proposition that fingerprint evidence forcibly obtained is inadmissible.” Although the Court of Errors and Appeals affirmed Vice-Chancellor Bigelow, his opinion was confined by the concurring opinion of Mr. Justice Parker, joined in by Mr. Justices Daly and Donges and Judge Kajrs. Pending the trial of the Bartletta Case, the so-called fingerprinting statute was passed, which has not as yet been considered by the Court of Errors and Appeals. In view of Mr. Justice Parker’s concurring opinion, the New York cases of Hawkins v. Kuhne, 137 N. Y. S. 1090; Gow v. Bingham, 107 N. Y. S. 1011, and People v. Hever, 215 N. Y. S. 412, require serious consideration. And compare United States v. Kelly (C. C. A., 2d Circuit), 55 Fed. Rep. 67.

The decision in Boyd v. United States, 116 U. S. 616; 29 L. Ed. 716, which was written by Mr. Justice Bradley (formerly a justice of our New Jersey Supreme Court) is important for two reasons, first because it holds that the seizure or compulsory production of a man’s private papers, to be used in evidence against him, is equivalent to compelling him to be a witness against himself, and secondly, because the opinion discusses the doctrine and practice of our Court of Chancery in granting discovery. Mr. Justice Bradley says (29 L. Ed., at p. 751) :

“Now it is elementary knowledge that one cardinal rule of the Court of Chancery is never to decree a discovery which might tend to convict the party of a crime, or to forfeit his property. And any compulsory discovery by extorting the party’s oath, or compelling the production of his private books and papers, to convict him of crime or to forfeit his property, is contrary to the principles of a free government. It is abhorrent to the instincts of an Englishman; it is abhorrent to the instincts of an American. It may suit the purposes of despotic power; but it cannot abide the pure atmosphere of political liberty and personal freedom.”

In Marsh v. Marsh, 16 N. J. Eq. 391, which was an action for divorce on the ground of adultery, the Chancellor said:

“The bill prays a discovery from the defendant, whether, since her marriage, she hath not committed adultery with any person whatever, and with whom, and at what time and place, and under what circumstances. This constitutes a valid ground of demurrer. The rule is, that a defendant is not bound to accuse himself of a crime, or to furnish any evidence whatever which shall lead to any accusation of that nature. And the objection lies to a particular interrogatory, though the bill be in other respects unexceptionable. Mitford’s Eq. Pl. 194; Story Eq. Pl. §§ 522, 524, 575.” (Italics mine.)

See, also, Story Eq. Pl. (9th Ed.) §§ 524, 525, 575-586.

Professor Wigmore (4 Wigmore on "Evidence” (2d Ed.) §§ 2117, 2120, 2190, 2194), Britt (“Blood Grouping Tests and the Law; The Problem of Cultural Lag,” 21 Minn. Law Review 671; also 22 Minn. Law Review 836), and Mason Ladd and Robert B. Gilson (24 Iowa Law Review 191, “The Medico-Legal Aspects of Blood Tests to Determine Intoxication”), take the view that blood tests and physical examination constitute real evidence not within the scope of the immunity against self-incrimination. Upon historical precedent they argue that the privilege against self-incrimination applies only to testimonial evidence. As against this view we have the leading case of State v. Height, supra, and the cases following it above mentioned.

The language of R. S. 2:97-9 (N. J. S. A. 2:97-9) expressly exempts a husband and wife in an action for divorce on the ground of adultery from being compelled to give “evidence” for the other, except to prove the fact of marriage. The comprehensive word “evidence” is used. Is there not a difference between giving evidence and being a witness (which implies testimonial evidence only) ? The word evidence is a broad, embracing term, including all classes of proof, testimonial or otherwise. The policy which moved the legislature to confer the statutory privilege of immunity against giving evidence would seem to be the same whether the evidence is testimonial or otherwise.

In 22 C. J. 65, it is said :

“In legal acceptation, the term ‘evidence’ includes all the means by which any alleged matter of fact, the truth of which is submitted to investigation, is established or disproved.”

And in 22 C. J. 66, it is said:

“While the term ‘testimony’ is frequently employed as equivalent, in legal effect, to ‘evidence,’ such use is inaccurate, for the two terms are not synonymous. ‘Evidence’ is the broader term and includes all testimony, but ‘testimony’ is accurately used to designate only a particular kind or species of evidence, namely, that which comes to the tribunal through living witnesses speaking under oath in the presence of the tribunal.”

Bouvier says (Rawle’s Third Revision 1091) :

“The word evidence, in legal acceptation, includes all the means by which any alleged matter of fact, the truth of which is submitted to investigation, is established or disproved. 1 Greenl. Ev. C I § 1; Will, Cir. Ev. 1. Testimony is not synonymous with evidence; Havvey v. Smith, 17 Ind. 272; the latter is the more comprehensive term; Whart. Cr. L. § 783 * *

The provision of the Evidence act above cited (R. S. 2:97-9; N. J. S. A. 2:97-9) is in effect a re-enactment in comprehensive language of the common law immunity against self-incrimination, as it applies to suits for divorce on the ground of adultery. It preserves a principle so ancient and so universal that it ought to be held to be beyond question, at least until the legislature shall enact otherwise in clear and unequivocal language.

It is an established rule of statutory construction that repeals by implication are not favored and that where it is possible to reconcile two statutes the court should make every effort to sustain both. Winne v. Casale, 99 N. J. L. 345; affirmed, 100 N. J. Law 291. It cannot reasonably be held that the legislature, in authorizing the court to order the making of blood grouping tests, intended to repeal by implication a statute of such long standing, expressive of such an ancient and universally approved personal privilege. Bayonne Textile Corp. v. American Federation of Silk Workers, 116 N. J. Eq. 146; 172 Atl. Rep. 551. Particularly such a construction should not be given to the statute where the result would be to render it to that extent unconstitutional, as it seems to me, because in violation of article 1, plac. 1, of our constitution.

It seems strange that in none of the reported cases has the constitutional right to personal privacy and security been raised and debated. This inherent right is expressly secured by all of the state constitutions, as well as by the Federal Constitution. The Constitution of New Jersey deals with it in article 1, plac. 1. The immunity “consists in a person’s legal and uninterrupted enjoyment of his life, his limbs, his body, his health, and his reputation.” 16 C. J. S., Constitutional Law, art. 205.

Under the English common law and under our American constitutional law, natural rights are such as appertain originally and essentially to each person as a human being, as a member of organized society and as a citizen of a free government. . They are rights recognized as inherent in the individual member of the state, personal, absolute and inalienable. Among these rights is that of personal security. We have held this exemption to include the right of every person to be free from the scrutiny of others in respect to his private affairs, books and papers (Ex parte Hague, 106 N. J. Eq. 134; 147 Atl. Rep. 220; affirmed, 123 N. J. Eq. 475, 480; 150 Atl. Rep. 322), to be secure in his reputation against unwarranted attacks such as slanders and libels (Neafie v. Hoboken Printing and Publishing Co., 75 N. J. Law 564; 68 Atl. Rep. 146), and to be protected against the publication of his photograph without his consent. Edison v. Edison Polyform Manufacturing Co., 73 N. J. Eq. 136; 67 Atl. Rep. 392; see, also, Pavesich v. New England Life Insurance Co. (Ga.), 69 L. R. A. 101.

The individual surrenders to society many rights and privileges which he would be free to exercise in a state of nature, in exchange for the benefits which he receives as a member of society. But he is not presumed to surrender all of those rights, and the public has no more license, without his consent, to invade the domain of those reserved private rights than he himself has to violate the valid governmental regulations of the organized state of which he is a citizen. The right of privacy has its foundation in the instincts of nature. It is recognized intuitively, consciousness being the witness to prove its existence. Any person of normal intellect recognizes at once that as to each individual member of society there are matters private, and matters public. Each individual instinctively resents any encroachment by the public upon his private rights. The right of privacy in matters purely private is derived from natural law. 1 Domat’s Civil Law, by Strahan (Cushing’s Ed.) 19; 1 Blk. Com. 123, 129, 134. The concept was developed under the Roman law, whence it became incorporated into our common law. The injuria of the Roman law embraced not only all of those wrongs which were specifically enumerated by statute, but “by numberless other acts.” Sandars, Justinian (Hammond’s Ed.) 499; Poste's Inst. of Gaius (3d ed.) 449. The punishment of one who had not committed any assault upon another, or impeded in any way his right of locomotion, but who merely attracted public attention to the other as he was passing along a public highway or standing upon his private grounds, evidences the fact that the ancient law recognized that a person had a legal right “to be let alone,” so long as he was not interfering with the rights of other individuals or of the public. This notion is the basis of our exercise of injunctive process in cases of private nuisances resulting from noise which interferes with one’s enjoyment of his home. 2 Wood, Nuisances (3d ed.) 827 et seq. Under the Roman law, to enter a man’s house against his will, even to serve a summons, was regarded as an invasion of his right to privacy. Hunter, Roman Law (3d ed.) 149. This is the foundation of the common law maxim that “every man’s house is his castle,” and in Semayne’s Case, 5 Coke 91; 1 Smith’s Lead. Cas. 228; 77 Eng. Reprint 194 where this maxim was applied, one of the points resolved was “that the house of everyone is to him as his castle and fortress, as well for his defense against injury and violence as for his repose.” The reason for the punishment of eavesdroppers and common scolds was not for the protection of property rights, hut the fact that their conduct was a disturbance of the right to quiet and repose. The right to search the person, papers or house of another for the' purpose of enforcing a claim of one individual against another in a civil proceeding, or in the maintenance of a mere private right, was never recognized at common law, but such searches were confined entirely to cases of public prosecutions, and even in those cases the legality of the. search was formerly doubted, and it has been said that it crept into the law by imperceptible degrees. 25 Am. & Eng. Encyc. L. (2d ed.) 145. The refusal of the courts to allow such a search as an aid to the assertion of a mere private right, and its allowance sparingly to aid in maintaining the rights of the public, is a recognition of the existence of the constitutional right of privacy, for the law on the subject of unreasonable searches and seizures rests upon that principle.

To subject a person against his will to a blood test is an assault and battery, and clearly an invasion of his personal privacy. It involves the sticking of a surgical needle into his body. Perhaps the operation is harmless in the great majority of cases, although the risk of infection is always present. But if we admit such an encroachment upon the personal immunity of an individual where in principle can we stop? Suppose medical discovery in the future evolves a technique whereby the truth may infallibly be secured from a witness by trepaning his skull and testing the functions of the brain beneath. Ho one would contend that the witness could be forced against his will to undergo such a major operation at the imminent risk of his life, in order to secure evidence in a suit between private parties. How then can he be forced to undergo a less dangerous operation, and at what point shall the line be drawn? To my mind it is not the degree of risk of life, health or happiness which is the determinative factor, but the fact of the invasion of the constitutional right to personal privacy.

It may be conceded that a witness may be produced (including an infant) and viewed and inspected by the jury, to determine physical resemblance. Gaunt v. State, 50 N. J. Law 490; 14 Atl. Rep. 600; Overseer of the Poor v. Eason, 92 N. J. Law 199, 201; 104 Atl. Rep. 291. That is far different from subjecting an unwilling witness to an assault and battery to secure a blood grouping test. One’s right of privacy is not legally infringed by requiring him to attend court as a witness. When in court he must necessarily undergo the visual scrutiny of the jurors. But it is a far step therefrom to subject the witness to a surgical examination against his will in aid of proof in an action between private persons in which the state has no interest.

This is not a case in which the public interest requires the making of the tests. Possibly there may be civil eases in which it could be argued that the tests could be justified under the police power, fox example a proceeding fox custody where a substitution has inadvertently been made in a maternity hospital. See Buck v. Bell, 274 U. S. 200; 71 L. Ed. 1000.

But upon what social theory can the compulsory blood grouping test of a defendant and her child in a divorce suit ordered for the purpose of attempting to prove her guilty of adultery, be justified? The public policy does not favor divorce. It regards the family as the social unit, and does not encourage the annulment or dissolution of that relationship. Tt recognizes, with the strongest presumption, the legitimacy of every child born in wedlock. Vreeland v. Vreeland, 78 N. J. Eq. 256; 79 Atl. Rep. 836; Michaels v. Michaels, 91 N. J. Eq. 408; 110 Atl. Rep. 573; Thewlis’ Estate, 217 Pa. 307. See: Boyd v. United States, 116 U. S. 616; 29 L. Ed. 746; Weeks v. United States, 232 U. S. 383; 56 L. Ed. 652; Silverthorne Lumber Co. v. United Stales, 251 U. S. 385; 64 L. Ed. 319; Amos v. United States, 255 U. S. 313; 65 L. Ed. 654; Gouled v. United States, 255 U. S. 295; 65 L. Ed. 647; Olmstead v. United States, 277 U. S. 438; 72 L. Ed. 944.

To grant petitioner’s application would in my judgment amount to an unconstitutional invasion of the right of personal privacy of the defendant and of the child.

For the above reasons the petition is denied.

This disposition of the motion makes it unnecessary for the court to make any special provision for the protection of the child. She is not and cannot be made a party to the suit (Quigley v. Quigley, 45 Hun. (N. Y.) 23) although a decree in favor of the petitioner may profoundly affect her social and property rights. By reason of her minority her constitutional rights may not be waived and must be carefully protected by the court, for she is a ward in Chancery. Her immunities are not less than those of the defendant, but are independent of them.

In Beuschel v. Manowitz, 241 App. Div. 888; 272 N. Y. S. 165, the Appellate Division reversed the trial court in ordering a blood grouping test in an action for carnal assault which resulted, as was claimed, in the birth of a child. In its reversing opinion the court observed:

“This child is not a party to this action; and while a Court of Chancery has inherent jurisdiction over the welfare of an infant, a ward of the court, nothing in this case indicates in the slightest that the welfare of this infant is in any wise involved or that the blood test could possibly be beneficial to the infant.”

While this case was decided before the amendment to the Civil Practice act permitting blood grouping tests, the quoted portion of the opinion is still good law, as it seems to me, because the action was one for damages and, as the court pointed out, the infant could not possibly have been benefited by the result of the case.

In Franken v. State, ex rel. Fuerst (1926), 209 N. W. Rep. 766, the Supreme Court of Wisconsin in a bastardy proceeding held that the protection of the public is secondary to the interests of the child. The opinion stated in part as follows:

“We have, therefore, two parties interested * * * in a bastardy proceeding * * * who may be termed innocent parties, viz., first the child, and second the public, and as between the two * * * the principal object is the welfare of the child, and the secondary one that of the public.”

This court would not have felt justified in ordering a blood grouping test of the infant without first appointing a guardian ad litem to appear in her separate interest. So far in this case such an appointment has been unnecessary, but in the event of an appeal a guardian should be appointed.

       Wiener, Blood Groups and Blood Transfusion (1935) ; Wiener, Determining- Parentage, Scientific Monthly, April, 1935, page 323; Blood Test for Determination of Fatherhood, J. Am. Med. Assn., page 1057 (March 31st, 1928) ; Schiff, Medico-Legal Significance of Blood Groups, The Lancet, page 921 (November 2d, 1929) ; Blood Tests for Paternity, J. Am. Med. Assn., page 681, (August 20th, 1930) ; Lattes, Individuality of the Blood (Rev. Ed. 1932) ; Swetlow, Symposium of the Forensic Value of Tests for Blood Groupings, Med. Times and Long Island Med. J., page 203 (July, 1932) ; Pepper and Farley, Practical Hematological Diagnosis (1934), pages 195, et seq.; Landsteiner, Forensic Application of Serologic Individuality Tests, J. Am. Med. Assn., page 1041 (October 6th, 1934) ; Hooker and Boyd, Blood Grouping As a Test of Non-Paternity, 25 J. Crim. L. 187 (1934) ; Wigmore, Evidence (Supp. 1934), sections 165a, 165b, pages 149-160.


author: Weber, Judge.

text:
    Bergen County Orphans Court.
    IN THE MATTER OF THE ESTATE OF MARY ELIZABETH DAVIS, DECEASED.
    Decided September 12, 1940.
   Weber, Judge.

Mary Elizabeth Davis executed a will dated November 21st, 1932, which was admitted to probate by the surrogate of Bergen county on October 24th, 1936; and, on January 20th, 1937, a petition of appeal from the probate of this will was filed. The will, dated November 21st, 1932, was executed by the decedent and left with the Eutherford Trust Company for safe-keeping. The testatrix at that time, or, at some subsequent time thereto, had a safe deposit box in the Eutherford Trust Company but, the will was never kept in that box. In the year 1934, decedent made another will, inconsistent with the first will, which will contained a clause expressly revoking any previous wills. This later will was left with the Hackensack Trust Company, which was named the executor thereof. In the year 1935, decedent made another' will, inconsistent with the terms and provisions of the 1932 will, which will, also by its express terms, revoked any previous wills.

After the execution of the 1934 will, the testatrix asked Mrs. Ileise: “If I have any other wills, will this cancel them?” And, Mrs. Heise answered in the affirmative.

When the 1935 -will was executed, Mrs. Davis asked Mr. Waesche, who prepared the wills, if she could be sure that the new will revoked all previous wills and that he told her that it would but that, nevertheless, she should destroy the

1934 will. The 1934 will was lost or destroyed. The 1935 will could not be found after the death of decedent and the courts of this state held that the will was destroyed by her animo r evo candi.

The 1,932 will was, at all times, retained in the custody of the Rutherford Trust Company and the decedent never had possession of it from the date of the making thereof. This, therefore, presents for consideration, the question as to whether or not the 1932 will was revoked by the execution of the 1934 and 1935 wills and, if revoked, whether or not the 1932 will was revived by the revocation of the 1934 and 1935 wills.

Appellant contends that it was the intention of the testatrix to revoke the will dated November 21st, 1932; and, that such will was actually revoked by the execution of the later wills. In this state, there are several cases in which the question decided is somewhat similar to the question to be decided in this instance. In re Block Estate, 15 N. J. Mis. R. 233; 190 Atl. Rep. 315, is a case where testator executed a will in 1922, leaving it with his attorney to keep for him. In 1928, the testator returned to him and executed a second will, telling the attorney to keep both, because “he wanted to see how the children are going to act towards me.” Later, testator obtained the 1928 will from his attorney and took it home. The 1928 will was not found and was deemed to have been destroyed by the testator animo revocandi and the 1922 will was offered for probate. The Essex County Orphans Court, in that instance, admitted the 1922 will to probate upon the theory that the will of 1922 was never revoked by the 1928 will. On page 241, the court said: . “The question is not one of revivorship at all. It is a question of revocation pure and simple. In the light of the above provisions of the New Jersey statute as to revocation and not revivor, we consider first whether the later will has been revoked or not. If not, it stands, its revoking clause is effective, and the earlier will is revoked. If, on the other hand, the later will has been revoked under the statute, then we consider whether the earlier will has been revoked, under the circumstances surrounding it. If it has been revoked, in one of the ways provided for by the statute, or it cannot be proven because it cannot be found, there is intestacy. But, if not so revoked, it stands.” In re Randall v. Beatty, 31 N. J. Eq. 643, is a case in which testatrix, in 1870, executed a will. In 1873 she executed another will, wholly inconsistent with the 1870 will, which later will was canceled by her. A proof showed that the will of 1870 was never destroyed; that it, at all times, remained in the possession of the testatrix until her death; and, after her death, it was offered for probate. The Orphans Court there admitted the will to probate, which probate was affirmed by the Prerogative Court. The court, on page 646, said: “The fact that she so kept the will is the most cogent evidence of her intention that it should be revived by the cancellation of the will of 1873.” On page 646 the court further said: “In Usticke v. Bawden, ubi supra, the fact that a testator kept the prior will in her possession after the making of the later one, which expressly revoked the former, would raise a strong presumption that he meant that it should revive on the cancellation of the revocatory will. In this case, this presumption could not be overcome by the hearsay testimony (for it is incompetent for the purpose) of witness as to the statements of the testatrix before referred to.” Moore’s Case, 72 N. J. Eq. 371, is a case in which the will offered for probate was dated December 12th, 1882; decedent executed another will in the year 1900, which later will was inconsistent with the earlier one and which later will also contained an express revocation of all former wills. It was there contended by the proponent upon application for probate of the earlier will that the destruction and revocation of the later will, revived the earlier one. The proof showed that the original will was not retained by the decedent in the place in which he kept his important papers, and to which he frequently resorted for examination of them. It was found with old letters and had been partially burned. The court, on page 374, said: “Dor the respondents the contention is, first, that the construction of the revocatory clauses of the wills statute was erroneous, but, second, that if it was not erroneous or is binding upon this court, in the present case, the circumstances proved clearly indicated that Daniel Moore did not, in fact, intend to revive or re-establish any former will. In Randall v. Beatty, ubi supra, Chancellor Runyon admits that it must appear, in order that the revocation of a later will shall operate to revive a former will, from the circumstances surrounding the transaction, that the testator intended to revive the former will. Assuming then that such construction of the statute of wills is correct, it admits of no doubt, in my judgment, that Daniel Moore in this case, if he did execute the paper-writing in question, did not intend that it should be revived by the destruction of the will drawn by Mr. Barrett and executed by Mr. Moore in 1900. The will construed in Randall v. Beatty had been retained by the testatrix, kept with her husband’s will in the place of deposit for her valuable papers, and was found there at her death, and this circumstance was seized upon to indicate that when she destroyed a will of later execution she intended to revive the will which she had preserved so carefully.”

All of the cases above set forth consider the question of revocation and, the opinion in all of them, recite that the circumstances surrounding the testatrix'' acts were taken into consideration in arriving at a decision as to the revocation and revivor. This, therefore, brings to the consideration of the court the question as to whether or not it was the intention of the testatrix, by the execution of the later wills; by the inclusion in those wills of a revocation clause as to prior walls; and, by her acts and conduct under the circumstances surrounding the transaction, to revoke the will dated November 21st, 1932. The statute, concerning the revocation of written wills, provides:

No written will, or any devise or bequest therein, or any clause thereof, may be revoked except by:

(a) Burning, canceling, tearing or obliterating the same by the testator himself or in his presence by his direction and consent; or

(b) Another will or codicil in writing revoking or altering the same, or other writing declaring the revocation executed in the manner in which wills are required by law to be executed.

It has been proven that the testatrix made two wills after the November 21st, 1932, will and, each of said wills expressly revoked any former wills. The execution of those wills complied with the provisions of section (b), above set forth. But, because both of the later wills were revoked by the testatrix, there is presented the question as to whether or not the November 21st, 1932, will was revived by the revocation of the later wills. It is, therefore, necessary to determine, from the circumstances surrounding the transaction, whether or not the testatrix intended to revive the previous will. Tor a period of about ten years prior to her death, with the exception of two periods of about one and one-half years each, the testatrix lived with the principal beneficiary named in the 1934 and 1935 wills. During one of such periods, when she was living at Butherford, Bergen County, New Jersey, the same community wherein the residuary legatee named in the 1932 will lived, she executed that will. After the execution of that will, in the year 1934, she moved to Hackensack, Bergen County, New Jersey, and, at all times thereafter and until her death, lived at the home of the residuary legatee named in the 1934 and 1935 wills. The will dated November 21st, 1932, was never, after the making thereof, in the physical custody or possession of the testatrix but, was at all times, retained by the Butherford Trust Company in its custody. The testatrix, at the time of the execution of each of the two later wills, made an express inquiry as to whether or not all prior wills were revoked and of no further force and effect, which indicated definitely that she was of the opinion that the 1932 will, after being once revoked, remained revoked.

In view of all the testimony before me, I have come to the conclusion that it was the intention of the testatrix to revoke the November 2.1st, 1932, will and that it was not her intention, by the revocation of the 1934 and 1935 wills, to revive the 1932 will. But, rather, that it was her intention to die intestate. The probate of the will dated November 21st, 1932, shall, therefore, be set aside.

The proponent, at the time of trial, made a motion to dismiss the appeal because the proponent had been served only with a citation and not with a copy of the petition for appeal. This motion is denied, because the records of this court show that a petition of appeal was duly served upon the proponent, as appears from the acknowledgment of service endorsed upon the original.

Counsel for William Z. Earle and Anna P. Earle objected to the appearance of the executor named in the will dated November 21st, 1932, and the attorney selected by the executor. I find such objection to be without merit and, accordingly, overrule the same.