On rule to show cause why letters testamentary should not be revoked.
Mary Magura died intestate November 24, 1950, resident and domiciled in the City and State of New York. Surviving are her husband, Michael Magura, and an infant grandchild, Mary H. Link. The husband is resident in New York. The grandchild and her mother, who is the guardian herein, reside in New Jersey. Upon application made February 28, 1951, general letters of administration were issued on March 30, 1951, to the said Michael Magura by the Surrogate of New York County. On March 10, 1951, complaint for letters of administration in New Jersey was filed with the Surrogate of Hudson County by Mary P. Link as mother and guardian of the grandchild. Thereupon notice of the application, returnable March 24, 1951, was deposited by the Hudson surrogate in due course of mail and directed to the said Michael Magura at his residence, 514 W. 135th Street, New York City. On the noticed date the letters applied for by the mother and guardian were granted. Their validity is now attacked by the said Michael Magura, both as surviving spouse and as the holder of general letters issued in the jurisdiction of decedent's domicile.
The first point of objection goes to the sufficiency of the surrogate's notice and is based on Rule 3:88-2(b). This rule requires "that 60 days' notice, or such notice not less than ten days in length, as the court may by order direct" be "given to all * * * who reside without the State." In this instance what the surrogate gave was notice of 14 days. The argument is that this reduction from the maximum notice stated in the rule vitiates the notice altogether for the reason that the surrogate made no order in writing fixing the lesser period. It is contended to be the intent of the rule to require, where the lesser period is fixed, that the order therefor be in writing. In Clapp's Wills and Administration ,
8 New Jersey Practice, secs. 1131 and 1132, chapter 16, appropriate forms of petition and order are suggested, and the accompanying text is:
"Where the persons entitled to notice are non-residents, the above petition and order are required in every case where less than sixty days' notice is desired. If sixty days' notice is satisfactory, the petition stated in Section 1131 and the order in this section are not needed."
It is my opinion that in the very nature of things any written order requirement must be deemed directory and not mandatory. All in all, the matter involved is within the sound discretion of the court, the object always being the prevention of injustice, or prejudice to the rights of others. Certainly inadequate notice would be none the better because sanctioned by a written order, and adequate notice none the worse for the want of such an order. It is a necessity of the husband's contention here that the requirement for a written order be taken as absolute, since any departure from that standard must admit the requirement to be discretionary, that is, discretionary in the absence of prejudice or injustice, which I believe to be the sole criterion. If indeed the requirement were to be taken as absolute the result could well be an improvident waste of procedure and a definite working of prejudice as well. An instance readily suggests itself, one for example where the notice given was indisputably adequate, though less than the maximum, and where written order had been omitted. Would any good be served by vitiating such notice? To interpret the rule as petitioner asks would take from this matter of notice all considerations of its substance and leave it to be dominated by those of form. And even conceding the legitimate formality of a written order, I see no reason why the formality would not be entirely satisfied by a written order nunc pro tunc.
Rule 3:61, which by Rule 5:3-8 is made applicable to the Probate Division of the County Court, provides a further corrective for the situation, assuming the need. The rule is:
"Neither error in the admission or the exclusion of evidence, nor error in any ruling or order or in any action taken or omitted by the court or by any of the parties, nor any other matter, whether or not involving the exercise of discretion, shall constitute ground for * * * vacating, modifying or otherwise disturbing a judgment or order, unless a denial of the relief sought appears to the court to be inconsistent with substantial justice."
I do not see how the latter rule can be understood except as cancelling completely the importance of a written order requirement where, after the procedure has been completed, no matter of substance is shown to be involved in its omission and no party to be aggrieved by reason of prejudice to his rights.
The next ground of objection is that the notice mailed by the surrogate was actually not delivered. The fact is that it was returned to the surrogate bearing the post office stamp "Not at the address given." The problem presented by this objection is simplified in that there is no question but that the said Michael Magura did reside at 514 W. 135th Street, and that the notice had been addressed to him at that address in full compliance with the rule, and had been properly mailed. Its return by the postal authorities, undelivered, is not explained. As to this, however, it is enough to say that proof of actual delivery is not required. All that is required by the rule was done. I need not suggest how prohibitive necessity for proof of actual delivery would be. It is all too obvious. The essential thing is that as matters have turned out petitioner has been in no way prejudiced. Whatever objections he could have made before the surrogate upon return of the notice were equally available to him in these proceedings. Indeed, no prejudice is ...