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In re Probate of

Decided: March 15, 1951.

IN THE MATTER OF THE PROBATE OF THE ALLEGED WILL OF WILLIAM R. THROPP, II, DECEASED


Application for allowance and maintenance of minor child, etc. under R.S. 3:2-29.

Newman, J.c.c.

Newman

This is an application by the First National Bank of Toms River, New Jersey, in the capacity of guardian of Jane Ellen Thropp, a minor, for the allowance of maintenance of a minor child and allowance to meet expenses in connection with a contest of the will of William R. Thropp, II, deceased, under and by virtue of R.S. 3:2-29.

It appears that the will of the above named decedent was admitted to probate in the Ocean County Surrogate's Court on the 19th day of July, 1950, and an appeal from such probate has been taken and is now pending in the Ocean County Court, Probate Division. The appeal from such probate has been taken by Dorothy S. Thropp, widow of the decedent and The First National Bank of Toms River, New Jersey, guardian of Jane Ellen Thropp, minor daughter of decedent.

The statute in question provides as follows:

"In all cases where any contest has arisen or shall arise in any court * * * touching the probate of any paper purporting to be the last will and testament of any person * * * the judge of the orphans' court * * * may upon petition made for that purpose * * * by any of his children * * * or by the next friend of any child above mentioned, if such child be under twenty-one years of age, make an order upon the person having the custody of the estate of such person for the payment, pending the contest over the probate of the will, out of the income of the estate of the decedent, of such allowance for the support and maintenance of such * * * child or children as the * * * judge may deem just; and such further allowance out of the income, or, if need be, out of the corpus, of such estate as may be necessary to meet the expenses incurred or to be incurred in conducting such contest concerning the probate of such will."

The statute further provides that the widow shall not have the benefit of this statute unless she shall have been living with the decedent at the time of his death.

It is admitted, in this case, that the widow was not living with her husband at that time and she does not join in this application.

Testimony was taken on this application for the purpose

of establishing facts to the satisfaction of the court that the child was in need of funds for her maintenance from her father's estate and further that she was in need of funds for the proper prosecution of the will contest.

I deem it the statute affords the court the right to order the use of the income and corpus of the father's estate in cases where the court is convinced there is a necessity on behalf of the minor child for such use. It therefore becomes ...


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