Goldmann, Freund and Haneman.
Inez Gay appeals from an order of the Chancery Division, entered May 9, 1958, denying her motion to have the court set aside its earlier order of December 13, 1957 (entered December 16, 1957) requiring her to file a power of attorney with the Superior Court Clerk to receive service for her of all papers in the action. The notice of appeal was filed June 6, 1958.
Annie May Stengel died a resident of Monmouth County on January 22, 1956, survived by her two sons, respondent Karl Raymond Stengel and Henry Ivan Stengel, and a granddaughter, Inez Stengel Gay, only living child of a deceased daughter. Her purported last will and testament, dated January 27, 1949, left her estate to Karl if living at her death, and if not, to Henry. She left nothing to Inez Gay "for the reason that she is amply provided for otherwise than through the medium of my estate and I have made numerous gifts to her during my lifetime." The will nominated Karl her sole executor, but if he predeceased her, Henry.
Karl proceeded to have the will probated in solemn form in the Chancery Division. He filed a complaint reciting the names and addresses of decedent's heirs and next of kin, including Mrs. Gay, whose address was given as 140 East 46th Street, New York City, where she had been living. An order to show cause issued, returnable March 9, 1956, why the alleged will should not be admitted to probate and letters testamentary issued. The court directed that a copy of the complaint and order be served on the named persons in interest either personally or by unregistered mail, at least 20 days before the return day. The unregistered letter addressed by proponent's attorney to Mrs. Gay at her Manhattan
address was returned with notations of "Unclaimed" and "Postage due 3 cents."
The probate hearing proceeded as scheduled on March 9, 1956, Mrs. Gay absent. The Chancery Division judge took the testimony of the three subscribing witnesses and Karl Raymond Stengel, and subsequently on March 13, 1956 entered an order admitting the document to probate. Karl duly qualified as executor, letters testamentary issued, and he promptly undertook administration of the estate.
Claiming that she had no knowledge of the probate until August 1956, Mrs. Gay, acting pro se , served notice (that and nothing more) on Karl's attorneys that she would apply to the Chancery Division on September 28, 1956 for an order to show cause why the judgment of probate should not be set aside. The matter came on before the same judge who had sat in the probate proceedings, and he dismissed the motion. Mrs. Gay then retained counsel and moved to set this order aside. In her accompanying petition and affidavit she alleged she had resided at the New York City address until June 1955; that at the time of the probate proceedings she was living in South Salem, N.Y.; and that she had returned to the Manhattan address after the birth of a child late in March 1956. She explained how she had belatedly learned of the probate after extensive investigation, and went on to allege that she was ready to prove that her grandmother was incompetent and incapable of making a will on January 27, 1945, and that the instrument was the result of undue influence exercised by Karl. After considering the counter-affidavits filed and the briefs and argument of counsel, the same Chancery Division judge on November 2, 1956 refused to vacate his earlier order of dismissal. In doing so he observed that Mrs. Gay was notorious for her dilatory tactics and for imposing on the courts and attorneys of this State. He recalled the several actions she had initiated, all involving her grandmother and the estate, and stated that she was well experienced in court matters. He refused to give credence to her affidavits.
On appeal this court held (Docket A-106-56, unreported decision of May 27, 1957) that in light of the verified petition and affidavits the interests of justice required that Mrs. Gay be afforded her day in court so that she might inquire into the issues of mental incompetency and undue influence she had raised. Our mandate reversing the order of November 2, 1956 issued on May 27, 1957.
On November 14, 1957 Mrs. Gay, again appearing pro se , moved for "settlement of the order of reversal," her motion being accompanied by a form of order reversing the order of November 2, 1956 and the preceding order of September 28, 1956, and directing Karl Raymond Stengel to show cause on December 12, 1957 why the judgment of probate should not be set aside. On the return day counsel in opposition pointed out to the court that the judge who had previously sat in the matter had refused to sign the proposed order unless Mrs. Gay first designated someone in New Jersey to accept service of papers. Counsel represented that because of her New York residence there was the constant problem of giving notice and effecting proper service. When the judge said he would sign the order if Mrs. Gay filed a power of attorney with the Superior Court Clerk to accept service, Mrs. Gay's only objection was that papers forwarded to her by the clerk might be delayed in the mails. The court then stated that an additional five days would be allowed. This was satisfactory to Mrs. Gay and she agreed to prepare the necessary power of attorney. Accordingly, an order was entered December 13, 1957 directing her to file the power of attorney with the clerk and ordering that there be five days' additional notice on service of all proceedings.
Mrs. Gay did absolutely nothing. She prepared and filed no power of attorney. She did not appeal. Instead, on March 3, 1958 she moved to set the order aside because it was "inequitable and would work undue hardship." Her accompanying affidavit alleged that after the ...