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Romano v. Maglio

Decided: September 21, 1956.

LEONORA ROMANO, PASQUALE ROMANO AND ROCCO CARUSO, EXECUTORS AND TRUSTEES OF THE ESTATE OF ANTONIO MAGLIO, DECEASED, PLAINTIFFS, LEONORA ROMANO, PLAINTIFF-APPELLANT,
v.
LOUISE MAGLIO, ET ALS., DEFENDANTS-RESPONDENTS



Clapp, Jayne and Francis. The opinion of the court was delivered by Clapp, S.j.a.d.

Clapp

[41 NJSuper Page 565] Mrs. Pasquale Romano, one of the daughters of Antonio Maglio and a beneficiary under his will, moved before the Superior Court, Chancery Division, to set aside an order entered by it approving certain sales of his lands. The motion was denied. She now appeals from the order denying her motion, claiming that the order

approving the sales was void because of a lack of jurisdiction over her and a denial of procedural due process.

In 1952 she, Pasquale Romano and Rocco Caruso, who were appointed by the will as executors and trustees, commenced this action as an action of ejectment. Four other daughters of the testator counterclaimed demanding, inter alia , that the court "take jurisdiction of the administration" of his estate, that plaintiffs be removed as trustees and that the will be construed, particularly Paragraph Eleventh:

"I direct my Trustees to give first preference in the sale of any part or all of my real estate to my children."

It may be noted, in passing, that this provision of the will had been previously construed to a certain extent by the Chancery Division in an unreported case, Forbringer v. Romano , affirmed on other grounds, 10 N.J. Super. 175 (App. Div. 1950).

On February 27, 1953, pursuant to a stipulation of settlement, a final judgment was entered by consent on the complaint in ejectment and the counterclaim. The judgment directed the trustees to sell "all of the real estate" left by the testator within 90 days, as more fully specified in the judgment, and it further provided in paragraph 6:

"Any of the parties hereto shall have leave to apply to the court for further directions or relief at the foot of this judgment."

Thereafter, during the next 17 months the counterclaimants, obviously proceeding under paragraph 6 of the judgment, filed four petitions in the cause: two of them leading to orders attempting to effect a sale of the lands; the third leading to orders removing the above-mentioned executors and trustees for malfeasance and adjudging them in contempt of court; and the fourth to an order appointing the Howard Savings Institution, as substituted administrator with the will annexed and substituted trustee, and also joining Mrs. Romano and others, individually, as parties defendant to the counterclaim (she had theretofore been a party merely in her capacity as one of the executors and trustees).

Thereafter the Howard Savings Institution, obviously also applying for further directions at the foot of the final judgment, filed a petition dealing with contracts entered into by petitioner, subject to the approval of the court, for the sale of all the testator's realty. In the petition was set forth paragraph Eleventh of the will, which, as above stated, gave the children a first preference in the sale of any part or all of the testator's realty. The petition demands judgment approving these sales and authorizing the petitioner to make conveyances of the lands to the respective purchasers free from any preference. An order to show cause issued on the petition, and on February 11, 1955 an order was entered in accordance with the demands of the petition.

Eleven and a half months later Mrs. Romano moved to set aside this order, but the motion was denied by Judge Sullivan by order of March 23, 1956. She then made a motion before this court under R.R. 2:2-3 for leave to appeal from the order of March 23, 1956. At that posture of the case she assumed the order was interlocutory.

We have not yet had occasion to discuss our practice under that rule, and it may be helpful to make some general observations on the matter. We grant leave under the rule only "in the exceptional cases where, on a balance of interests, justice suggests the need for a review" of an interlocutory order. Appeal of Pennsylvania Railroad Co. , 20 N.J. 398, 409 (1956). Indeed, the power given to this court by the rule is very sparingly exercised by us. In the usual case, the application to us is made prior to a final judgment, and we then have regard for the strong public interest in uninterrupted proceedings at the trial level with a single and complete review. Appeal of Pennsylvania Railroad Co., supra; Trecartin v. Mahony-Troast Construction Co. , 21 N.J. 1, 6 (1956); City of Newark v. Division of Tax Appeals, Dept. of Treasury , 7 N.J. 8, 12 (1951).

We will not grant leave to appeal in order to correct minor injustices, such as those commonly attendant on orders erroneously granting or denying interrogatories or discovery. Redress ...


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