This motion under Rule 1:7-8A to transfer this entire cause to the Superior Court is made by the accountant, Fidelity Union Trust Company, executor of the last will and testament and codicil thereto of William M. Young, deceased. The motion is grounded upon the proposition that some of the items included in the account filed herein, as well as some of the issues raised by the exceptions filed to the account, are subject matter not within the jurisdiction of this court.
For a proper understanding of the issues presented for determination by this motion, as well as the conclusion that the application of the accountant must be denied, a brief
recital of the factual background out of which this application arose is necessary.
William M. Young died on February 2, 1927, a resident of Essex County, New Jersey, leaving a last will and testament and codicil thereto, which was duly admitted to probate by the Surrogate of Essex County who issued letters testamentary thereon to Fidelity Union Trust Company (formerly Fidelity Trust Company), the executor therein named, which duly qualified.
By paragraph one of his will, decedent directed payment of his debts, funeral and testamentary expenses. By the second paragraph he set up a trust which never became effective. By the codicil he gave his household goods and furnishings to his daughter, Alice Rose Young. The remaining pertinent provisions of his will are as follows:
"THIRD: I direct my executor hereinafter named to convert my real and personal property into money as soon as a reasonable price can be obtained for the same and to divide and distribute the net proceeds thereof equally among my children, Margaret C. Schuelke, Francis A. Young, Mary E. Gesell, William M. Young, Junior, Grace McMahon, Edward B. Young, George F. Young and Alice R. Young.
FIFTH: I make, constitute and appoint Fidelity Trust Company, aforesaid, Executor of and Trustee under this my last Will and Testament, and give to it full power and authority to sell and dispose of any and all real estate of which I may die seized, either at public or private sale, at such times and upon such terms as to it may seem for the best interest of my estate, and to make good and sufficient conveyances in the law therefor; and further I direct that no bond shall be required of it, either as Executor or Trustee, for the faithful administration of my estate in any jurisdiction."
Decedent was survived by the children named in paragraph third of the will who constituted all of his heirs-at-law and next-of-kin. His estate consisted of personal property inventoried at a value of $1,546.75 and a piece of real estate in Newark, known as 1124-1126 South Orange Avenue, on which there was a house which decedent and some of his children lived in at the time of his death.
The real estate just mentioned is the subject matter of the direction contained in and the power conferred by the provisions
of the will previously quoted. This real estate was never sold by the accountants and some time in 1930, and before May 23 of that year, the building, or a portion thereof was destroyed by fire. The income from the property was insufficient to pay the taxes thereon and ultimately the property was sold for taxes and the tax sale certificate was sold. This certificate was foreclosed and the right, title and interest of the accountant and the beneficiaries was debarred by a judgment entered on October 7, 1949.
Thereafter, on August 1, 1950, the accountant filed the complaint herein presenting for allowance its first and final account of the administration of the estate for the period from February 2, 1927, to April 24, 1950. In the complaint accountant charges itself as follows:
"Total Assets as per Inventory and Ap-
praisement dated February 25, ...