On appeal from the Superior Court, Law Division, Passaic County.
For reversal -- Chief Justice Vanderbilt, and Justices Case, Heher, Oliphant, Wachenfeld, Burling and Ackerson. For affirmance -- None. The opinion of the court was delivered by Case, J.
[7 NJ Page 112] The appeal was to the Appellate Division and was brought here on our own motion. The matter never reached the stage of an answer. Upon the filing of the complaint in the Passaic County Circuit Court, a motion was made by defendant under the old practice to strike the pleading because it did not set forth a cause of action, and later a counter-motion,
with supporting affidavit, was made by plaintiff for summary judgment. Concurrently, the former motion was denied and the latter was granted. The appeal is from the judgment entered on that decision. The court treated the presentations as cross-motions for summary judgment under Rule 3:56, but they were not strictly such.
The allegations of the complaint were: Delia Agnes McGuirk died September 30, 1930, leaving a will which named Agnes McBennett, a daughter, as executrix. The will was probated, and the designated executrix qualified. Paragraph 3 of the will provided:
"Upon the death of my husband, John McGuirk, then my daughter Agnes McBennett is to give my son Louis E. McGuirk the sum of $3000 and my granddaughter the sum of $1000, to be theirs absolutely and forever."
John McGuirk died in 1945. Louis E. McGuirk died in August, of 1934, leaving as his sole survivor his wife, Jenny McGuirk, who qualified as administratrix of the estate of her deceased husband and brought this suit. The complaint further alleged that upon the death of Delia Agnes McGuirk her son, Louis E. McGuirk, acquired "a present vested, fixed right to the sum of $3,000, subject only to a deferment of payment until the happening of an event certain to happen," and demands "of the defendant" the sum of $3,000 together with interest and costs.
The defendant, individually and as executrix, moved, on September 13, 1948, to strike the complaint on the ground that it did not set forth a cause of action in that the legatee in paragraph 3 did not thereby acquire a vested right and that upon his death the legacy lapsed. That motion, upon those grounds, was not supported by facts necessary to an affirmative decision. Much later, but before the motion directed against the complaint was decided, plaintiff, on May 19, 1950, moved for summary judgment and in support filed the affidavit of Jenny McGuirk which restated the allegations of the complaint and added the averment that "the said Agnes
McBennett received all the property and estate of the said Delia Agnes McGuirk."
The judgment, entered November 8, 1950, is for the sum of $3,000, beside costs to be taxed, in favor of the plaintiff, Jenny McGuirk, administratrix, and against the defendant, Agnes McBennett, individually and as executrix of the estate of Delia Agnes McGuirk.
The meritorious question is whether or not the gift of $3,000 was vested and is now enforceable against the defendant either as an individual or as executrix or in both capacities. It is futile to enter upon that legal discussion without knowledge of the facts to which the law must be applied and which are not disclosed by the record. The allegations of the complaint, which form the substance of the supporting affidavit, do not have the accuracy or the detail to support a judgment against Agnes McBennett either individually or as executrix, and the additional statement, supra, contained in the affidavit does not supply the omission. It does not appear what "the property and estate of Delia Agnes McGuirk" consisted of, viz., whether personalty or realty, or whether Mrs. McBennett received it individually or as executrix. Perhaps, since of the office of executrix is not designated, the allegation is meant to state that the recipient was the defendant as an individual, but that possibility is not sufficiently plain to resolve the doubt. If the dependence is upon the devise of real estate, burdened with the gift in paragraph 3 as a charge, the ground for holding the executrix does not appear; likewise, if the dependence is upon a legacy of specific personalty to Mrs. McBennett. We are told that various matters were related to the court below without being put in proof. Briefs of one side or the other state that the entire will of ...