On motion to vacate judgment.
On September 6, 1957 an order was issued on the application of Patricia McIlroy and James Clarken, directing Joseph A. Clarken, executor, and Thomas J. Clarken to show cause why a judgment entered in this court on November 30, 1956 admitting to probate the last will and testament of Mary E. Gillen, deceased, should not be set aside on the ground that a fraud had been perpetrated on this court.
Testimony in support of this application having been presented, Joseph A. Clarken, executor, and Thomas J. Clarken moved to dismiss said application on the ground that the time for making the same had expired and on the further ground that such evidence did not sustain a charge that a fraud had been perpetrated on the court. The taking of testimony in opposition to the relief sought was reserved pending disposition of this motion.
Mary E. Gillen died on June 24, 1956, having been survived by two brothers, Joseph A. Clarken and Thomas J. Clarken, and two children of a deceased brother, namely, Patricia McIlroy and James Clarken. Her last will and testament was executed on December 28, 1949 and it was duly admitted to probate by the Passaic County Surrogate on July 6, 1956. The principal beneficiary and the executor named therein was Joseph A. Clarken. No provision was made in said will for Thomas J. Clarken, Patricia McIlroy, or James Clarken.
On August 7, 1956, on application of Thomas J. Clarken, an order issued out of this court directing said executor and proponent of the will to show cause why the judgment of the surrogate admitting said will to probate should not be set aside.
Subsequently, on September 14, 1956 and November 9, 1956, testimony was presented in support of the caveator's contentions. After various witnesses had testified and before the completion of the hearings, the parties to the proceeding, namely, Joseph A. Clarken, executor and proponent, and Thomas J. Clarken, caveator, through their respective counsel informed the court that they had agreed upon a settlement. Accordingly, they stated to the court that it had been agreed that the caveat filed against the probate of the will was withdrawn; that the probate of the will would be affirmed; that after payment of debts, administration expenses and costs the balance of the estate would be distributed by payment of $2,500 to Patricia McIlroy, $2,500 to James Clarken, and the residue would be distributed equally between Joseph A. Clarken and Thomas J. Clarken. The settlement having been approved, a judgment consented to by the parties to the litigation withdrawing the application to set aside the judgment of probate by the surrogate and affirming said probate by this court was entered on November 30, 1956.
It is conceded that although both Patricia McIlroy and James Clarken knew of the death of Mary E. Gillen and the terms of the will admitted to probate shortly after such
events occurred, they made no attempt to set aside said will or to intervene as parties to such a proceeding. Their first attempt to participate in any way was taken on September 6, 1957, when they initiated the present proceeding.
R.R. 5:3-4 provides that any person aggrieved by a judgment of the surrogate's court may move before the County Court to set aside a judgment entered by the surrogate, provided notice of motion is served upon the plaintiff (executor and proponent of the will) within three months after entry of judgment (if residents) and within six months, if non-residents of the State. Both Patricia McIlroy and James Clarken are non-residents of New Jersey.
It is apparent that their application was made 15 months after judgment admitting the will to probate was entered by the surrogate and over nine months after the judgment entered in the County Court; ...