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In re Manfredini

Decided: December 18, 1952.

IN THE MATTER OF JOSEPH MANFREDINI, DECEASED


Eastwood, Goldmann and Francis.

Per Curiam

The only issue is whether the Camden County Court, Probate Division, properly entered a judgment on September 15, 1952, amending the judgment of distribution entered on August 7, 1950, to reflect a payment on May 6, 1949 to Josephine Manfredini, widow of decedent, in the sum of $10,000 on account of her distributive share, not correctly shown in the August 7, 1950 judgment. The appeal is prosecuted by Josephine Manfredini.

It is undisputed that Mrs. Manfredini received the partial distribution of $10,000 and that the judgment of August 7, 1950 improperly charged the amount of the advancement against the other three distributive shares, rather than against Mrs. Manfredini's share.

The appellant contends that the County Court was without jurisdiction to enter the judgment amending the original judgment of distribution, in that it disregarded the provisions of Rule 3:60-2 and Rule 3:6-1. We find no merit in this contention.

In support of her contention Mrs. Manfredini argues that

"When the court below said that the motion was decided upon the authority of Rule 3:60-2, subheading (6), it said, in effect, that the change was made under Rule 3:60-2, sub-division (6) 'any other reason justifying relief from the operation of the judgment or order.' It is impossible to know or even to guess what 'other reason' may have been in the mind of the court when it took the action which it did. The notice of motion relied upon sub-division (1) mistake, inadvertence, surprise or excusable neglect regarding which there is a one year limitation."

It is true that the original judgment of distribution erroneously reflecting the $10,000 payment was the result of the executor's carelessness or oversight; in fact, in the executor's application to amend the judgment it relied upon sub-division (1) of Rule 3:60-2, authorizing a judgment to be re-opened on the grounds of "(1) mistake, inadvertence, surprise, or excusable neglect," provided "the motion shall

be made within a reasonable time, and for reasons (1), (2) and (3) not more than one year after the judgment, order or proceeding was entered or taken." However, the court, in granting the amendment, relied upon the authority of sub-division (6) of the aforementioned rule, reading: "* * * any other reason justifying relief from the operation of the judgment or order." The executor's application for amendment of the judgment was not made until "June, 1952," returnable June 27, 1952. Judgment of amendment was entered on September 15, 1952. The executor asserts that much of the delay in discovering the error and applying for a judicial correction thereof was occasioned by the time consumed in an appeal to the Appellate Division by Mrs. Manfredini from the County Court's determination that certain bonds registered in the names of Joseph Manfredini or Mrs. Josephine Manfredini and a mortgage owned jointly should be charged against Mrs. Manfredini's share under paragraphs 3 and 4 of decedent's will, reading:

"THIRD: I give, devise and bequeath unto my wife, JOSEPHINE MANFREDINI, so much of the rest, residue and remainder of my entire estate as will, when added to such property as my wife and I own jointly at the date of my death, equal one-half of my net taxable estate, absolutely and in fee.

FOURTH: All the rest, residue and remainder of my estate, whether real, personal or mixed, and wheresoever situate, I give, devise and bequeath as follows:

1. One-half to my brother ANDREA MANFREDINI, of Via Giudiccioni, San Concordio, Lucca, Italy, absolutely and in fee.

2. One-quarter to my sister, AGATINA MANFREDINI, of Pieve, Fosciana, Lucca, Italy, absolutely and in fee.

3. One-quarter to my sister, GIUSEPPINA MANFREDINI PIERONI, of Gallicano (Piezza), Lucca, Italy, ...


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