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Matter of Estate of Rogers

Decided: August 14, 1951.

IN THE MATTER OF THE ESTATE OF HENRY WELSH ROGERS, DECEASED


On notice of motion for review of surrogate's judgment probating will.

Naughright, J.c.c.

Naughright

Morristown Trust Company, as executor and trustee under a purported will of decedent, Henry Welsh Rogers, and Reconstruction Home, Inc., as a beneficiary thereunder, apply to this court on notice of motion for an order to show cause why the judgment of the surrogate admitting to probate a later will and codicil of said decedent should not be set aside.

On return of the motion the executors and trustee under the probated will and codicil appeared and filed a cross-motion to dismiss the proceedings on the ground that the Morristown Trust Company, as executor and trustee under the purported will, is not a party aggrieved by the probate of the later will and codicil and that Reconstruction Home, Inc., a mere possible appointee under said will, has no interest, vested or otherwise, that will be adversely affected thereby.

Another cross-motion in opposition to this proceeding has been filed by the Trustees of Columbia University and Princeton University, beneficiaries of the residuary trust under the probated will and codicil, who had applied for and were granted leave to intervene as parties in interest. The cross-motion filed by these intervening parties also attacks the standing of the said Trust Company and Reconstruction Home, Inc., to maintain this action, and urges a dismissal of their application for an order to show cause on the ground that their motion fails to show any reasonable cause for reviewing the surrogate's judgment and is, therefore, legally insufficient.

It is further urged by the intervenors that the grounds set forth in the notice of motion are insufficient for granting a review, being mere conclusions of law unsupported by facts either alleged or proved.

It has been made to appear from affidavits filed in the cause that a stockholder and director in the Morristown Trust Company, the executor and trustee under the purported will,

witnessed that will. The executors and trustee under the probated will and codicil maintain that this fact is a further reason for dismissal of this action, as the appointment of the Trust Company as trustee is thus voided under R.S. 3:2-8, a statutory provision voiding beneficial appointments, devises, bequests, etc., to attesting witnesses.

The several issues raised on the cross-motion, as to the right of the moving parties to maintain this action, must be disposed of first before there can be any determination of whether the order to show cause should issue. Therefore, the issue that must first be considered is whether this proceeding was properly instituted and the motion filed therein legally sufficient.

I.

WAS THE MOTION OF MORRISTOWN TRUST COMPANY AND RECONSTRUCTION HOME, INC., PROPERLY MADE AND LEGALLY SUFFICIENT TO INSTITUTE A REVIEW OF THE SURROGATE'S JUDGMENT?

This action was commenced pursuant to Rule 5:3-4 which provides as follows:

"Where judgment has been entered in any action before the Surrogate of any county, any person aggrieved by the judgment may move before the County Court of the county, on notice to the plaintiff, for an order directed to all persons in interest, requiring them to show cause why the judgment should not be set aside * * *."

Rule 5:3-5 provides in part:

"* * * All actions under Rules 5:3-3, 5:3-4, and 5:3-5 before the County Court shall be proceeded upon in a summary manner under Rule 3:79, except as otherwise directed by the County Court."

Now it cannot be seriously controverted that a notice of motion to institute this action for review is permitted under Rule 5:3-4. The rule expressly states that "any person aggrieved * * * may move before the County Court * * * on notice," etc. The language of the rule seems to allow the

use of a motion instead of a complaint on order to show cause, as under Rule 3:79.

In Clapp, New Jersey Practice, Wills and Administration (1950), sec. 979, pages 582, 583, the author makes the following comment:

"The proceeding in the County Court for the review of a Surrogate's judgment is not a new action, but merely a phase of the action before the Surrogate * * *. The plaintiff in the application before the County Court is the plaintiff in the Surrogate's action; the moving party in the County Court, the person who carries the case to the trial tribunal, is merely a party defendant to the cause. A complaint has been filed below, and for the institution of the County Court proceeding, an additional complaint is utterly inappropriate."

Again in Clapp, New Jersey Practice, Wills and Administration (1950), sec. 929, page 583, n. 4, the author says: "A written motion is simpler to prepare and is therefore to be preferred." He further adds that Rule 3:7-2 "would seem to be the proper practice notwithstanding the fact (see Rule 5:3-5) that Rules 5:3-3, 5:3-4 and 5:3-5 are governed by Rule 3:79 * * * under which the order to show cause issues on the presentation of the complaint without a written motion or petition." It would thus appear that a motion is a proper method for instituting a review of the surrogate's judgment.

The parties on one of the cross-motions contend that while a motion as a means for instituting a review of the judgment of probate is sanctioned by this rule, in all other respects the action must be instituted under and conform to Rule 3:79. Rule 3:79 prescribes that the court shall order the defendant to show cause only when it is satisfied with the legal sufficiency of the complaint. Thus, it is concluded, a person seeking such review must establish a fair or reasonable cause for review and in the absence of such facts, the proceeding cannot be maintained.

What is overlooked, however, in this argument is the fact that Rule 5:3-5 does not say that actions under Rule 5:3-4 shall be instituted under Rule 3:79. What Rule 5:3-5

says is that actions under Rule 5:3-4 shall be proceeded upon in a summary manner under Rule 3:79. Rule 5:3-5 seems to indicate that upon return of the order to show cause the action should be proceeded upon in a summary manner. See Clapp, Wills and Administration (1950), sec. 979, page 583.

On the issue of whether fair or reasonable cause for review must be first established before an order will issue, it is stated in Clapp, Wills and Administration (1950), sec. 1546, page 674 that:

"* * * indeed on an application to the County Court for an order to show cause in order to review a Surrogate's judgment, the moving party need not establish that he has fair grounds for contesting the will, before the court will make the order to show cause."

In a recent county court decision, In re Atkinson's Estate , 13 N.J. Super. 587 (1951), the court made this pertinent observation in speaking of a notice of motion for an order to show cause:

"Ordinarily that motion would be granted as of course and an order to show cause would issue to all parties in interest so that the matter might proceed in the same fashion as it ...


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