Eastwood, Jayne and Francis. The opinion of the court was delivered by Francis, J.A.D.
The primary question for consideration here is the propriety of the action of the Chancery Division of this court in accepting jurisdiction of the complaint.
The record discloses that Louis Opper and Rebecca Opper, husband and wife, executed a joint and mutual will on December 21, 1949. Louis Opper died May 26, 1950, and as to him the will was probated in the Passaic County Surrogate's Court on July 12, 1950. Appellants were appointed executors of the estate. On March 8, 1952, Rebecca Opper died.
A daughter appealed to the County Court from the probate order on October 9, 1952, alleging that the will was the product of undue influence, duress, fraud and irregularity of execution. A judgment of dismissal and confirming the probate was entered therein on February 10, 1953. An appeal followed but it seems to have been abandoned.
On October 28, 1952, Leonard Wolf, the plaintiff in this suit, claiming to be a legatee under the will, instituted a proceeding in the County Court against the executors, who are also the defendants here, by complaint and order to show cause seeking the filing of an inventory. On February 19, 1953 the inventory was filed.
Up to this point all of the proceedings were in the County Court. Five months after the inventory was recorded this summary action was brought in the Chancery Division by complaint and order to show cause. The objection is voiced that regardless of the jurisdictional issue involved, the suit should have been a plenary one initiated by summons and complaint. R.R. 4:105-3. We pass that conflict to treat with the fundamental inquiry.
The complaint contained exceptions to the inventory on file in the County Court, charged the executors with dereliction of duty and sought a judgment: (1) setting aside the appraisal and inventory, (2) sustaining the exceptions, (3) appointing new appraisers, (4) discharging the executors,
(5) appointing new executors and (6) directing certain discovery.
A motion was made to dismiss on the ground that the Chancery Division had "no jurisdiction to hear and determine the matter since all proceedings were had in the Passaic County Court, Probate Division," and "for further grounds as set forth in an affidavit annexed hereto." The affidavit recited the history of the matter substantially as it has been set forth herein. The trial court denied the motion, holding that the action constituted a new proceeding and therefore under In re McFeely , 8 N.J. 9 (1951), jurisdiction should be retained.
Although the motion papers charge lack of jurisdiction, the argument is predicated here, as it seems to have been in the trial court, on the theory that it was improper for the court to accept and exercise jurisdiction because of the status of the matter in the County Court.
Plainly, the Superior and County Courts have concurrent jurisdiction over the subject matter of the action. Donnelly v. Ritzendollar , 14 N.J. 96, 101-106 (1953). So the problem is whether the Chancery Division should have refused to intervene and exercise its jurisdiction since the estate was already properly under the supervision of the County Court.
As indicated by the Donnelly case, supra , and Tumarkin v. Friedman , 17 N.J. Super. 20 (App. Div. 1951), one of the major objectives of the new Constitution was to permit, in fact to require where possible, the complete determination of a controversy between the parties by the ...