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Pusillo v. Czajkowski

Decided: March 23, 1953.

ANNE KONTER PUSILLO, PLAINTIFF,
v.
HELEN KONTER CZAJKOWSKI, INDIVIDUALLY AND AS EXECUTRIX OF THE LAST WILL AND TESTAMENT OF LIZZIE KONTER, DECEASED, AND FRANK KONTER, DEFENDANTS



Civil action. On defendants' motion to dismiss complaint.

Ewart, J.s.c.

Ewart

Lizzie Konter died a resident of Carteret, N.J., October 31, 1951, leaving a will dated August 2, 1951 and which was admitted to probate by the Surrogate of Middlesex County on November 13, 1951, on which date letters testamentary were issued to the defendant Helen Konter Czajkowski.

Testatrix left her surviving her daughter, the plaintiff; another daughter, the defendant Helen Konter Czajkowski; and a son, the defendant Frank Konter.

Plaintiff was a resident of the State of Florida at the time of her mother's death and at the time of the probate of her mother's will.

By her complaint filed May 19, 1952 plaintiff attacks the validity of the will of her mother, the testatrix, upon the ground that her mother was old and ill at the time of the execution thereof; that she was subjected to undue influence and coercion by the defendants; that the will was the product of undue influence and fraud and was not the will of the testatrix within the contemplation of law, wherefore plaintiff demands judgment that the said will was procured by fraud, undue influence and duress; that the order of the surrogate admitting the will to probate and the issuance of letters testamentary thereon be vacated; that it be adjudged that the testatrix died intestate; that the

defendant Helen Konter Czajkowski be removed as executrix and required to make discovery of the assets of the estate of the mother of the plaintiff and defendants; that the real estate of the testatrix be adjudged to be property of all of her children as in case of intestacy; and that the said real estate be partitioned between the children of the testatrix or that the same be sold and the proceeds divided among the children of the testatrix. And the complaint further charged that at the time of the making of said will on August 2, 1951 testatrix lacked testamentary capacity and demand is made that this court so determine.

This case was pretried January 23, 1953 and the pretrial order reserves to the defendants the right to move to dismiss the complaint on the grounds: (1) that it fails to state a cause of action, (2) that it is sham and (3) that this court lacks jurisdiction to grant the relief demanded.

Pursuant to the reservation contained in the pretrial order, defendant now moves to dismiss the complaint for the reasons stated.

Formerly the statute (R.S. 3:2-52) allowed three months in the case of a resident and six months in the case of a nonresident within which to appeal to the Orphans' Court from proceedings before the surrogate respecting the probate of a will. This statute was not re-enacted in the revision of Title 3, but was superseded by Rule 5:3-4, as amended January 1, 1952, and the rule gives the same periods of time and substantially the same rights by way of appeal to the County Court as formerly provided by the statute by way of appeal to the Orphans' Court.

It is to be observed that the plaintiff, a resident of Florida, permitted more than six months to expire from the date of the probate of her mother's will before the institution of this present suit, even though, as appears by plaintiff's answer to interrogatory No. 25 served upon her by the defendants, plaintiff first learned of the existence of her mother's will on or about November 4, 1951.

It is my conclusion that the complaint in this cause does not contain allegations sufficient ...


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