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Matter of Estate of John W. Dunn

Decided: September 29, 1949.

IN THE MATTER OF THE ESTATE OF JOHN W. DUNN, DECEASED


Del Mar, J.c.c.

Del Mar

This is a complaint by the Borough of Hasbrouck Heights for the appointment of an administrator ad litem of the estate of John W. Dunn, deceased.

The complaint alleges that said Dunn was domiciled in the State of Michigan at the time of his death; that no will has been probated nor administrator appointed in New Jersey; and that the Borough desires to foreclose municipal liens on certain real estate on which, at the time of his death, the said Dunn was the holder of a mortgage of record. The complaint further alleges that it is the desire of the Borough to foreclose the rights of redemption of the said Dunn's estate in said premises by an action in the Superior Court.

The probate jurisdiction of the Bergen County Court is only such as was formerly exercised by the Orphans' Court of the County (Constitution of 1947, Article VI, section IV, paragraph 1 and P.L. 1948, c. 365). (I have been unable to find any statute conferring any additional jurisdiction in the premises and none has been called to my attention.)

The jurisdiction of the Orphans' Court was limited to such matters as were entrusted to it by statute and such other jurisdiction as was necessary to execute and administer the statutory jurisdiction. See Potter v. Berry , 56 N.J.L. 454; affirmed, 57 N.J.L. 201; Mullaney v. Mullaney , 65 N.J. Eq. 384 at 386; Re Taub , 90 N.J. Eq. 293 at 296; Re Hazeltine , 119 N.J. Eq. 308; Re Fulper , 99 N.J. Eq. 293.

Generally speaking, the Orphans' Court had no jurisdiction over the original grant of letters of administration, unless a dispute or controversy arose as to the right of administration. See R.S. 3:1-2, R.S. 3:7-5.1 (resident decedents), and R.S. 3:7-10 (ancillary administration on the estate of non-residents); also see In re Queen , 82 N.J. Eq. 583; Quidort's Admr. v. Pergeaux , 18 N.J. Eq. 472; Coursen's Will , 4 N.J. Eq. 408; Admrs. of Morris v. Morris , 16 N.J.L. 526.

The power of a court to appoint an administrator ad litem is not, in this State, governed by any statute, but is one of the implied powers of a court, in a proper case, arising out of the necessities of the situation. Before such an appointment can be made, however, there must be some matter or proceeding pending in the court requiring as a necessary corollary the appointment of such an administrator. See Lothrop's Case , 33 N.J. Eq. 246; Babbitt v. Fidelity Trust Co. , 70 N.J. Eq. 651; Simon v. Calabrese , 139 N.J. Eq. 361; and similar cases.

The application in this case is not for a general grant of letters of administration and there is no matter pending in the Bergen County Court requiring the exercise of its inherent powers to appoint an administrator ad litem.

This would seem to dispose of the entire matter, except for the insistence of counsel of the complainant party that there

is no other court in the state having probate jurisdiction and, therefore, application must be made to this court. This is a non sequitur because, even if the matter italicized is true, the application should for reasons already stated be made to the Superior Court which has jurisdiction of the foreclosure of mortgages and the inherent power to appoint an administrator ad litem when necessary. However, in order to clarify the situation, I will now discuss the constitutional question involved.

The brief submitted by the complainant concedes that Article VI, section III, paragraph 2, of the Constitution of 1947, confers upon the Superior Court original general jurisdiction in all causes, but contends that that section is circumscribed by the succeeding section dividing the Superior Court into Appellate, Law and Chancery Divisions and notes the absence of any "Probate Division" in the Superior Court, and the absence of any ...


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