For affirmance -- Chief Justice Vanderbilt, and Justices Heher, Wachenfeld, Burling and Jacobs. For reversal -- None. The opinion of the court was delivered by Jacobs, J.
The Chancery Division issued an interlocutory injunction which restrained the defendants-appellants. The Trust Company of New Jersey, Forrest S. Smith and Virginia F. Cane, individually and as executors of the estate of William H. Cane, deceased, from participating in any further proceedings relating to the probate of Mr. Cane's will, in any jurisdiction except New Jersey. The appellants duly took their appeal to the Appellate Division under R.R. 2:2-3(a)(1) as it read prior to its recent amendment. We certified on our own motion.
The decedent William H. Cane died in Florida on March 27, 1956. He was then 81 years of age. On September 21, 1955 he had executed his last will and testament naming his wife Virginia F. Cane (whom he had married in 1952), Forrest S. Smith and The Trust Company of New Jersey as executors and trustees. The will provides for the establishment of two trusts, each in the sum of $375,000, with income payable to the decedent's widow for life; the widow is given a testamentary power to dispose of the principal of one of the trusts and in default of its exercise the principal is to be paid to The Trustees of Princeton University. The principal of the other trust is to be paid to The Trustees of Princeton University upon the death of the widow. The decedent's will also leaves to the widow the sum of $25,000, the contents of their apartment at 2600 Hudson Boulevard,
Jersey City, New Jersey, and the decedent's house, contents and land (approximately 243 acres) in Goshen, New York. Apart from several individual bequests the residue of the estate, which is estimated to be in excess of $5,000,000, is left to The Trustees of Princeton University. The forty-second paragraph of the will contains the following declaration as to the decedent's domicile:
"I hereby declare that my home, legal residence and domicil are at the date of this writing and always have been in the State of New Jersey, that any absences from this State in the past or future have been and will be merely temporary, with the definite intention on my part to return to this State. I further declare that if I should in the future make up my mind to change my home, legal residence or domicil to some place other than this State, I will execute a new Will or add a codicil to this Will changing this paragraph, and the absence of any new Will or codicil will show that my home, legal residence and domicil have continued to be in New Jersey."
On April 18, 1956 The Trust Company of New Jersey, a corporation of New Jersey having its principal office at Jersey City, and Forrest S. Smith, a resident of Monmouth County having his law office at Jersey City, filed a verified complaint in the Chancery Division of the Superior Court of New Jersey demanding judgment admitting to probate the last will and testament of William H. Cane and directing that letters testamentary be granted to The Trust Company of New Jersey, Forrest S. Smith and Virginia F. Cane. The complaint alleged that the decedent died on March 27, 1956 leaving his last will dated September 21, 1955; that at the time of his death he maintained a residence at 2600 Hudson Boulevard, Jersey City; that no caveat had been filed and there was no proceeding pending for the probate of the will in any other jurisdiction; and that the decedent had died owning real estate and personal property or evidence thereof in Hudson County, New Jersey. At the time the complaint for probate was filed Virginia F. Cane filed an affidavit which asserted that the decedent was domiciled at Goshen, New York, and also maintained an apartment in Jersey City; that she had been informed that the court
had power to grant the judgment prayed for in the complaint even though the decedent was domiciled in New York; and that she joined in the prayer for judgment with the explicit understanding that she did not waive any rights that she or the estate might have by reason of the fact that the decedent was domiciled in New York. On April 18, 1956 Judge Stanton entered judgment which set forth that the court was of the opinion that it had jurisdiction to grant the judgment prayed for in the complaint either under N.J.S. 3 A:3-18 or N.J.S. 3 A:3-29, admitted the will to probate, and adjudged that letters testamentary be issued to The Trust Company of New Jersey, Forrest S. Smith and Virginia F. Cane upon their qualifying as executors. Thereafter the executors duly qualified as such.
On May 4, 1956 the widow Virginia F. Cane filed a petition for probate in the Surrogate's Court, Orange County, New York. The petition alleged that she was one of the executors named in the will of the decedent; that no petition for probate had been filed except the one which was filed on April 18, 1956 in the Chancery Division of the Superior Court of New Jersey; that the decedent left real property in New York and personal property "wherever located"; that the decedent left real and personal property in Hudson County, New Jersey, and maintained a residence at 2600 Hudson Boulevard, Jersey City, New Jersey; that the decedent was a resident of Goshen, New York, and that an affidavit had been filed by Virginia F. Cane in the New Jersey proceeding stating that he was domiciled in New York. On May 4, 1956 the Surrogate of Orange County, New York, issued a probate citation directing The Trust Company of New Jersey, Forrest S. Smith and others to show cause on June 25, 1956 why the will should not be admitted to probate. Although The Trustees of Princeton University, a New Jersey corporation, was not named in the citation, it and other legatees were served with notices of probate in accordance with New York practice.
On May 14, 1956 the plaintiff The Trustees of Princeton University filed a declaratory judgment action in the Chancery
Division of the Superior Court of New Jersey seeking a determination that William H. Cane had died domiciled in New Jersey and a preliminary injunction against any further proceedings relating to the probate of the decedent's will in any other jurisdiction. The action also sought to have the plaintiff admitted as intervenor in the New Jersey probate proceeding and to reopen and modify the judgment of April 18, 1956. On May 14, 1956 Judge Stanton issued an order to show cause with ad interim restraint against participation by the executors in any further proceedings relating to the will "in any jurisdiction, whatsoever, except New Jersey." Thereafter, the order to show cause was served on the three executors; service on Virginia F. Cane was made upon her attorney of record in the New Jersey probate proceeding and on the Clerk of the Superior Court under a power of attorney filed by her in accordance with N.J.S. 3 A:12-14. The power of attorney was executed by the three executors and set forth that they thereby appointed the Clerk ...