No. 492 January Term, 1979, Appeal from the November 26, 1979 Decree of the Court of Common Pleas of Monroe County, Orphans Court Division at No. 45-74-143
Stanley E. Stettz, Robert E. Simpson, Jr., Easton, for appellant.
Edmund G. Flynn, Stroudsburgh, for appellee.
O'Brien, C. J., and Roberts, Nix, Larsen, Flaherty, McDermott and Hutchinson, JJ. Roberts, J., files a concurring opinion in which O'Brien, C. J., joins.
We are called upon here to resolve a conflict of law that lays upon the probate of an estate. The conflict is between the law of this Commonwealth and that of our sister, the garden state of New Jersey. The controversy is directly stated: until 1978, the state of New Jersey denied an attesting witness to a will any benefit under that will. Pennsylvania did not. Nancy M. Janney, a Pennsylvania domiciliary, executed a will leaving her entire estate to her sister, Carolyn Case.*fn1 Ms. Case was named executrix and subscribed as one of two attesting witnesses. The estate consisted of various assets situate in Pennsylvania, and realty located in New Jersey. During the course of administration, the property was sold. Distribution of the proceeds of the sale of that real property, the subject matter here, was excepted to by intestate heirs in the Orphans Court of Monroe County, Pennsylvania. They excepted alleging that since the testatrix died in 1974, the law then extant in the state of New Jersey denied an attesting witness benefit under the will. The exceptions were sustained, and an intestacy as to the proceeds of the New Jersey property was declared.*fn2 Ms. Case, executrix and beneficiary appeals.*fn3 We reverse.
That the law of New Jersey is entitled to full faith and credit is not in question here. What is in question is whether we should do what New Jersey no longer sees fit to do. The New Jersey statutes, N.J.Stat.Ann. 3A:3-6; N.J.Stat.Ann.
A:3-7, which voided beneficial devises to attesting witnesses, were repealed in 1978 when the New Jersey legislature passed the new Wills and Probate Reform Act of 1978. The 1978 act expressly states:
A will or any provision thereof is not invalid because the will is signed by an interested witness.
N.J.Stat.Ann. 3A:2A-7(b), effective September 1, 1978.
It is settled in this Commonwealth, as in New Jersey, that the intention of the testator is of primary importance, the lodestar, cornerstone, cardinal rule.*fn4 So that that intention shall be given full expression, it can be denied only where it is unconstitutional, unlawful, or against public policy.*fn5 Indeed, both New Jersey statutes, the old denying and the new allowing attesting witnesses benefit under a will, are articulations of that primary principle. The purpose of ...