On appeal from the Burlington County Court, Probate Division, certified by this court on its own motion.
For affirmance -- Chief Justice Vanderbilt, and Justices Wachenfeld, Burling, Jacobs and Brennan. For reversal -- Justices Heher and Oliphant. The opinion of the court was delivered by Vanderbilt, C.J.
[14 NJ Page 98] Victor Ritzendollar died on September 12, 1918 leaving a will which was duly admitted to probate by the Surrogate of Burlington County. Under the terms of the will three executors were appointed -- the plaintiff Eliza C. Ritzendollar, who is the decedent's widow, the defendant John H. Ritzendollar, his son, and Blanchard H. White, an attorney-at-law of this State, now deceased. The testator gave his home in Chatsworth outright to his widow and then provided that the Hedger House, which was the family homestead, should go to her and on her death or remarriage to his children Anna and Elizabeth until they reached 21 years of age, with the remainder over to the
defendant John H. Ritzendollar. Other properties, including several residences and cranberry bogs, were devised equally to the widow and the two daughters. The residue of the estate was to go to the two daughters when they reached 21 years of age, but until then the income was to be used for their maintenance and education.
Shortly after the testator's death the relations of the three executors became strained, especially between the plaintiff Eliza C. Ritzendollar and the defendant John H. Ritzendollar. In 1925 Mrs. Ritzendollar obtained the services of separate counsel. In that year John H. Ritzendollar and Blanchard H. White filed their final accounting as executors of the estate, while the account of Mrs. Ritzendollar was not filed until 1932. Exceptions were filed to both accounts and after hearings thereon final judgment on the accounts and on the exceptions was rendered by the Burlington County Orphans' Court on September 1, 1932. On January 24, 1933 Anna Ritzendollar executed a release and refunding bond covering her interest in the estate, while on August 15, 1935 George E. Wills, administrator of the estate of Elizabeth V. Ritzendollar, the other daughter of the decedent, executed a release and refunding bond on behalf of her estate.
During the course of their administration of the estate of Victor Ritzendollar the executors made deeds of various properties, each of which was signed by all three executors. Many of these properties were reconveyed to John H. Ritzendollar, some almost immediately after the sale and others within ten years thereafter. In 1948 Eliza and the heirs and next of kin of Anna and Elizabeth instituted this action in the Chancery Division of the Superior Court, the amended complaint filed in 1950 alleging among other things that "by fraud, coercion and threats" the defendant John H. Ritzendollar had disposed of the Hedger House property belonging to Eliza, that various premises in which Eliza, Anna and Elizabeth had an interest under the will had been sold by the defendant and no accounting therefor had been made for the purchase price, and that he effected a conveyance
of these properties to himself contrary to law. The complaint demanded an accounting by the defendant John H. Ritzendollar of the monies received from these conveyances and for the rents, issues and profits from these properties that he be chargeable as trustee of these monies for the benefit of the plaintiffs, and that various conveyances by the executors and the reconveyances to the defendant be set aside as fraudulent, and that the defendants be ordered to reconvey these premises to the plaintiffs.
At the pretrial conference the parties stipulated to the use in evidence for all purposes of the entire transcript of the hearings in 1932 in the Burlington County Orphans' Court on the accounts and the exceptions thereto. Prior to trial the Superior Court, on defendant's motion, transferred the case to the Burlington County Court, saying:
"Under authority of Carton v. Borden, 8 N.J. 352, 85 A.2d 257-259, it is this court's feeling that the jurisdiction of this court and in the County Probate Court is co-extensive; that the County Court can render full relief in this matter, it has done most of the work in this case, anyway, and this court feels that the trial would be expedited by referring this matter to the County Court."
Considerable testimony was presented at the trial in the Burlington County Court showing that although Eliza Ritzendollar as one of the executors signed the deeds here involved she was not informed of what she was signing, and that the other co-executors took care of all the estate matters and refused to inform her or the other beneficiaries of their actions. Although finding that as to most of the properties the plaintiffs had failed to establish their case, the trial court held that as to three of the conveyances the plaintiffs should prevail. Accordingly it adjudged: (1) that the conveyance of decedent's one-half interest in the cranberry bogs to Jonathan H. Kelsey and the reconveyance to the defendant John H. Ritzendollar by deed dated some seven weeks later were voidable, and that a trust would be impressed on these premises in favor of the plaintiffs and that the defendants should account for one half of the profits and
losses and proceeds of any lands sold from the premises by them; (2) that the conveyance of a one-half interest from the Applegate Land and Improvement Company to the defendant executor was in settlement of water rights necessary for the operation of the premises, and therefore the deed for one-half interest therein was voidable and a trust was impressed upon the premises in favor of the plaintiffs, and the defendants were ordered to account for one-half of the profits and losses from these premises and the proceeds of any tracts of land sold therefrom; and (3) that the conveyance by the executors to William H. Absalom and the reconveyance to the defendant by deed dated the same day were voidable and a trust was impressed upon the premises in favor of the plaintiffs and the defendants were ordered to account to the plaintiffs for the proceeds of the sale thereof. The trial court further ordered the defendants to file an accounting in accordance with the judgment.
From the rulings of the trial court the defendants appealed and we certified the appeal on our own motion while it was pending in the Appellate Division of the Superior Court.
The judgment of the trial court is adequately supported by the evidence and in fact defendants do not strenuously argue to the contrary. They do, however, urge several affirmative defenses which they claim warrant a reversal of the judgment.
Initially the defendants claim that the County Court had no jurisdiction to impress a trust and to require an accounting, arguing that the Chancery Division of the Superior Court alone has exclusive jurisdiction in this field. Although this issue was not raised below we consider it here in keeping with our policy to do so where "the questions raised on appeal go to the jurisdiction of the court below or when they are matters of great public concern." Morin v. Becker, 6 N.J. 457, 460 (1951). We believe that not only does this question go to the jurisdiction of the court below but it is also a matter of great public concern.
The present County Courts were created by the Constitution of ...