Civil action on complaint and action by fiduciaries for advice and directions.
[61 NJSuper Page 529] On September 20, 1959 Robert Badenhop died, testate, leaving a will dated January 7, 1954, a codicil dated February 8, 1954, and an alleged codicil dated September 11, 1959. The present applicants are executors and trustees named in the will. Both codicils republish the will. Upon being presented to the Surrogate of Monmouth County he adjudicated that doubts arose as to the due execution of the second codicil. On October 23, 1959 an order to show cause was obtained why the will and codicils should not be probated, and on the adjourned return date thereof, December 11, 1959, the court entered judgment denying probate of the second codicil to the will. On January 22, 1959 Selma A. Badenhop filed a notice of appeal from that judgment. If the second codicil is effective, Selma A. Badenhop will gain pecuniarily tax-wise to the ultimate
pecuniary detriment of the executors and trustees. Accordingly, the pecuniary interest motivates the widow in prosecuting the appeal and pecuniary interest likewise would motivate the executors and trustees in opposing the appeal.
The principal probelm which confronts the executors and trustees is with relation to an " in terrorem " clause as set forth in the twelfth paragraph of the will, which reads as follows:
"Twelfth: Having given due consideration to the devises, gifts and bequests made in this, my Last Will and Testament, the same have been so made on the express condition that none of the beneficiaries shall oppose or contest the probate or validity of this Will in any manner. Any beneficiary so opposing or contesting the said probate or validity of this Will, or in any way assisting in such act or acts, shall automatically forfeit whatever devise, gift or bequest he or she would have been entitled to receive under the terms of this, my Last Will and Testament."
Accordingly they sought the aid of the Monmouth County Court, Probate Division, and requested this court to lend its advice and direction as to whether or not they should participate in the appeal with a view to sustaining the judgment of the Monmouth County Court denying probate of the second codicil because the twenty-third paragraph of the will required the executors and trustees "to do all lawful things to carry out its terms."
The widow opposes the application and raises two arguments wherein she contends the court should not lend its aid, first, because it is without jurisdiction to construe the will. She suggests that the proper forum is the Superior Court, Chancery Division, and cites Donnelly v. Ritzendollar , 14 N.J. 96, 106 (1953), as the authority for this contention. The court's research indicates that she had stronger reeds on which to rely. Brown v. Fidelity Union Trust Co. , 128 N.J. Eq. 197, 204 (E. & A. 1940) holds that the authority of the Orphans Court to construe a will is incidental to its jurisdiction to decree distribution; and In re Morrisse's Estate , 91 N.J. Eq. 477 (Prerog.
1920), provides that when an estate is not ripe for distribution, no construction of the will can there (in the Probate Division of County Court) be obtained.
However, the New Jersey Constitution, Art. VI, Sec. IV, Par. 5, provides:
"The County Courts, in civil causes including probate causes, within their jurisdiction, and subject to law, may grant legal and equitable relief so that all matters in controversy between the parties may be completely determined."
In re Sotnikoff , 34 N.J. Super. 422, 425 (App. Div. 1955) provides that the County Court has jurisdiction and cognizance of importance phases of the action, such as the admission to probate of the will and codicils. Having cognizance of the cause under these circumstances, the court receives under the Constitution the jurisdiction further to give the instructions sought. Carton v. Borden , 8 N.J. 352 (1951), ...