Goldmann, Smalley and Schettino. The opinion of the court was delivered by Schettino, J.s.c. (temporarily assigned).
This is an appeal from a summary judgment in favor of defendant.
The complaint alleged the following: Mary McFeely died intestate on June 4, 1942, and on June 10, 1942 her brother Bernard N. McFeely, was appointed administrator. He filed an inheritance tax return showing assets of Mary's estate in the amount of $292,448.86. On August 8, 1949 Bernard died testate and defendant qualified as executor under his will. Plaintiff is the substituted administrator of Mary's estate. He charged that Bernard did not file an inventory, or account, or fully perform his duties as administrator. Plaintiff demanded an accounting and judgment for the sum mentioned above, less lawful deductions.
Defendant answered that on June 10, 1942 (the date Bernard was appointed administrator of Mary's estate) all
of the remaining next of kin, 11 in number, transferred their interests in Mary's estate to Bernard; that the instrument of transfer has never been adjudged invalid; that Bernard, as sole party in interest, was not required to account (R.S. 3:10-1); and plaintiff is not entitled to maintain the action in behalf of the next of kin. The answer alleges other matters which did not figure in the action below, and which we need not consider on this appeal.
Plaintiff replied that on June 9, 1942 the next of kin, at Bernard's request, executed a renunciation of their right to letters of administration in favor of Bernard; that on June 10, 1942 the instrument of transfer, here relied upon by defendant, was obtained by fraudulent misrepresentation that it was a corrective form of the renunciation executed the day previous.
On the motion for summary judgment five of the next of kin signed affidavits sustaining the charge of fraud. Defendant filed an affidavit by the attorney for Bernard which controverted the charge of fraud as to the nature of the instrument in question. There is no doubt that a triable issue of fact appears. Stacy v. Greenberg , 9 N.J. 390 (1952). Defendant does not seem to dispute that this is so, but rather urges that until the instrument of transfer is adjudged invalid in proceedings brought by the next of kin, it stands as an insuperable bar to an action by the substituted administrator. It is urged, that the alleged wrong was not a wrong to the estate, but rather to the individual beneficiaries, and they alone may attack the transfer. The trial court agreed with that view and granted judgment upon that premise.
We are constrained to disagree.
N.J.S. 3 A:6-46 provides:
"A substituted administrator with or without the will annexed shall be entitled to demand and receive the whole of the personal estate of his decedent, except such portion thereof as shall have been properly and justly paid out and distributed. He may sue for and recover all such assets, or their equivalent whether legal or equitable, from any person, his heirs or personal representatives, chargeable therewith, and in like manner charge his predecessor in office for any breach of trust or maladministration and shall in any such
litigation represent the creditors and all persons beneficially ...