On motion to dismiss counterclaim.
[29 NJSuper Page 595] The plaintiff executrix commenced an action in the County Court by complaint and order to show cause. The complaint sought discovery of "certain papers, bank books, insurance policies, clothing, articles of furniture and other personal effects" left by the decedent in a room which he occupied in the home of his sister-in-law, Mary Dydo. The order to show cause directed Mary Dydo to make such discovery. Concededly, this discovery proceeding is properly before the court by reason of N.J.S. 3 A:12-11, in which it is provided that the court to which a fiduciary is accountable may require that persons possessing or having knowledge of the existence or whereabouts of personal property of a decedent make discovery of the
same. Obviously, such proceedings of themselves raise no controversy between the fiduciary and the person sought to be examined.
In the complaint it was alleged, unnecessarily, that Mary Dydo claimed ownership of the personal property, discovery of which was sought. In these circumstances this allegation will be considered surplus and so of no effect upon the merits of the present controversy.
Upon the return of the order to show cause Mary Dydo presented an affidavit conceding ownership in the decedent of all the personal property in her possession, except a bank book, and she deposed as to it and the bank account of which it is evidence that she is the true owner by virtue of a gift to her by the decedent causa mortis. The County Court thereupon made an order directing her to turn over to the plaintiff all of the personal effects except the bank book, and continued the matter to permit the "defendant to serve and file a counterclaim and a brief in support thereof." Further, it was ordered that the plaintiff furnish an answering brief and that the matter be set down for plenary hearing.
The defendant then filed a counterclaim alleging ownership of the bank account and asking for a declaratory judgment to this effect, to which the plaintiff made answer, challenging the jurisdiction of the County Court. Thereafter both parties filed briefs in which the jurisdictional question was argued, and in due course the matter came before the court on the continued date, for determination of the validity of the counterclaim.
The parties hereto agree that trial of title to the bank account is a purely equitable proceeding which the County Court would ordinarily be without authority to determine. The question now presented is whether or not jurisdiction may be taken under Article VI, Section IV, paragraph 5 of the New Jersey Constitution, which reads as follows:
"The County Courts, in civil causes including probate causes, within their jurisdiction, and subject to law, may grant legal and
equitable relief so that all matters in controversy between the parties may be completely determined."
The intention of the framers of our basic document that the County Court should assume equitable jurisdiction in all cases in which contesting parties are properly before it is unmistakable, and in the several cases in which the article has been the subject of judicial construction our courts have emphasized this mandate. Donnelly v. Ritzendollar , 14 N.J. 96 (1953); In re Young's Estate , 18 N.J. Super. 527 (Cty. Ct. 1952); Tumarkin v. Friedman , 17 N.J. Super. 20 (App. Div. 1951); Masi v. Mestice , 12 N.J. Super. 140 (App. Div. 1951).
But, as was stated in the Donnelly case, supra , the decisions clearly delineate the rule that the article does not grant to the County Courts the power to determine purely equitable questions. Thus, the nature of the two proceedings ...