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In re Probate of

Decided: March 7, 1955.


On certified appeal by Fealy Caruso D'Andrea, executrix of the deceased Nicolo Caruso, from the Appellate Division of the Superior Court.

For reversal -- Chief Justice Vanderbilt, and Justices Heher, Oliphant, Burling, Jacobs and Brennan. For affirmance -- Justice Wachenfeld. The opinion of the court was delivered by Heher, J. Burling, J., concurring in part.


We are here concerned with the propriety of assessing the estate for the services of counsel and disbursements made in an unsuccessful will contest.

Lawrence Caruso interposed a caveat to the probate of a writing purporting to be the will of his father, who died April 19, 1951; and after protracted hearings characterized by the deep emotion and bitterness so often engendered by such family division, there was judgment on July 30, 1953, in the Essex County Court, sustaining the proffered writings as the deceased's duly executed will and codicil, the expressions of a sound mind free of fraud or undue influence, yet affirming that the caveator "had reasonable cause for contesting the validity" of the will and codicil, and retaining jurisdiction of the action "to permit applications for allowance of fees and costs by the attorneys for all the interested parties."

On December 23, 1953 a "supplemental judgment" was entered in the County Court, reciting the earlier judgment and

the finding therein made of "reasonable cause" for the contest and the retention of jurisdiction of the question of counsel fees and costs, and allowing counsel fees aggregating $8,500, costs in the total sum of $822.65, including $768 for the price of the trial transcript, $500 each to the proponent's and the contestant's handwriting experts, a grand total of $10,322.65, all charged to the estate of the deceased.

These are the fee allowances to counsel: $400 to David Green for services to the proponent; $4,000 to Harkavy and Lieb, Green's successors as counsel to proponent; $600 to Frank J. Brunetto, Jr. for his representation of Mary Caruso, a daughter of the deceased; and $3,500 to Fredrick J. Waltzinger, representing the contestant.

On February 5, 1954 the executrix served and filed a notice of appeal from the judgment "entered December 23, 1953, relative to the finding that the caveator had reasonable cause for contesting the validity of the will and codicil and to the allowance of fees and costs."

There were cross-appeals by counsel: David Green and Frank J. Brunetto, Jr., each from the allowance of "a counsel fee to the cross-appellant."

On motion of Harkavy and Lieb, for themselves and David Green, and with the consent of the cross-appellant Brunetto, the appeal of the executrix was dismissed by the Appellate Division of the Superior Court on April 7, 1954, and the cross-appeals "withdrawn"; and the cause is here by certification at the instance of the executrix.

The order of the Appellate Division dismissing the appeal does not declare the ground of the dismissal. The motion to dismiss was rested on these alleged transgressions of the rules of court: (1) the notice of appeal "is vague and uncertain" and fails to identify the allowances to Harkavy and Lieb and Green as the subject matter of the appeal conformably, it is said, to R.R. 1:2-8(b) and R.R. 2:2-5; (2) the deposit required by R.R. 1:2-10 and R.R. 2:2-5 was not made; and (3) the appendix and brief were not served in accordance with R.R. 1:7-1 and R.R. 2:7-1.


The executrix asserts an "abuse of discretion" in the dismissal of the appeal. Recourse is had to R.R. 1:1-8, providing for a relaxation of the rules where "strict adherence" will work "surprise or injustice."

We are clear that in both form and substance the notice of appeal satisfies the requirements of R.R. 1:2-8(b). And while there was a conceded failure to make the deposit for costs directed by R.R. 1:2-10, and assuming that in the special circumstances there was not timely service of the appendix and brief, we are yet of the view that these defaults should not be permitted to foreclose consideration of the meritorious question, especially since it concerns the allowance of counsel fees, the cost of expert testimony, and other expenses incurred by the unsuccessful contestant, all charged to the estate of the deceased. Such rule violations are not, however, to be deemed minor, ordinarily entailing no adverse consequences; these rules are designed to expedite the judicial process and their relaxation is not to be the usual course.

But it is now urged contra that neither this court nor the Appellate Division "can review a question not decided by the judgment which is made the basis of the notice of appeal"; and that here the appellant, by this appeal taken from the supplemental judgment of December 23, 1953, seeks a review of the finding of reasonable cause for the contest incorporated in the earlier judgment of July 30, 1953, and so the "portion of the notice of appeal" directed to a review of the "adjudication" by the trial court that the caveator had "reasonable cause" is a "nullity," as "an attempt to secure a review" of the earlier judgment "after the time for appeal had expired, R.R. ...

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