Conford, Foley and Leonard. The opinion of the court was delivered by Conford, J.A.D.
This is an appeal from the appointment by a judge of the Essex County Court, Probate Division, of an administrator c.t.a. of the estate of Ernest Meyer, who died testate April 5, 1921. Numerous technical objections are raised by the appellant Clara M. Wachstein to the proceedings below, but her primary objection is that the determination appealed from took place without proper notice and hearing, and on a day for which there was scheduled only a pretrial conference in the matter.
A proper understanding of this litigation will require reference also to a companion proceeding, one involving removal by another judge of the Essex County Court of trustees of a trust for the benefit of said Clara M. Wachstein set up under Ernest Meyer's will (hereinafter referred to as the trusteeship case). An appeal by Mrs. Wachstein in that case was argued together with this one and is being disposed of by an opinion filed concurrently herewith, 63 N.J. Super. 352.
By his will Ernest Meyer devised and bequeathed his residuary estate to his wife, Caroline, for life. He directed that at her death his daughters Jennie and Ray be paid $2,000 each and that the remainder of the estate go, "absolutely
and forever," in equal one-sixth shares each, to his daughters, Jennie and Ray, and to his sons, Solomon, Benjamin S. and Milton A., the remaining one-sixth in trust to his executors, or the survivor, to pay the net income and as much of the principal as they deemed advisable to his daughter, Clara Wachstein, for her life. Upon Clara's death, the income from her share was directed to be paid equally to her lawful issue until the youngest of them reached the age of 21, whereupon the principal was to be paid to them in equal shares. His wife and his sons, Benjamin S. and Milton A., or their survivor, were appointed as executors and trustees.
Caroline Meyer died February 12, 1923, survived by all the named children. Benjamin died May 17, 1956 and Milton, last surviving trustee and executor, on February 19, 1959. The presently surviving children are Jennie, aged 84, Ray, aged 74, and a mental incompetent, for whom Franklin E. Pellegrin, Esq. has been duly appointed guardian, and Clara M. Wachstein, aged 65. Jennie and Ray were never married. Mrs. Wachstein's only children are Evelyn Pollack, plaintiff respondent herein, and Beatrice Bloom, both married and of full age.
The docket in the Essex County Surrogate's Office shows that the Ernest Meyer will was probated April 29, 1921. A single refunding bond and release (that of Milton A. Meyer) was filed January 29, 1939, but no accounting has ever been filed by any of the testamentary fiduciaries.
On March 5, 1959 the plaintiff Pollack served notice upon the defendant Wachstein of intent to apply to the Essex County Surrogate for grant of letters of administration c.t.a. of the property of Ernest Meyer to herself or some other fit person. At the same time she filed a complaint in that court wherein it was recited, inter alia , that the executors of the Estate of Ernest Meyer had died before "completing" their duties as such and left "unadministered" assets of the estate of a value "not exceeding the sum of $2,500." Named as sole living heirs and next of kin were
Clara Wachstein and Jennie and Ray Meyer. The executed form of complaint used omitted a designation of the "competent adult persons" whose right to substitutionary administration with the will annexed is prior or equal to that of plaintiff. There was neither any filing of renunciations nor proof of service of 10 days' notice to persons who had not renounced, but plaintiff's appendix sets forth a letter from the attorney for plaintiff dated March 5, 1959 to Clara Wachstein, Beatrice Bloom and Jennie and Ray Meyer, enclosing a copy of the notice of application.
On March 5, 1959 Mrs. Wachstein filed a caveat against the granting of letters of administration c.t.a. and the matter was placed on the County Court contested list. After one or two adjournments of dates for pretrial conference, the date therefor was finally set for November 19, 1959, at which time the order under appeal was entered under circumstances to be related.
On February 26, 1959 Mrs. Wachstein had procured the entry of an order to show cause in the County Court why a substituted trustee should not be appointed to carry out the testamentary trust in favor of herself and her daughters under the Ernest Meyer will in place of the deceased last surviving executor-trustee. The complaint therein, as set forth in the trusteeship case, states that on the return of the order Mrs. Wachstein nominated her son-in-law, Abraham Bloom, for trustee, but that Evelyn Pollack objected to Bloom serving alone and requested that her husband, Max Pollack, be named co-trustee. Both were consequently appointed and qualified as such, filing bond in the sum of $25,000, the amount suggested jointly by the parties.
From opposing affidavits of Bloom and Pollack set forth in the appendix of the trusteeship case it appears that Bloom was frustrated in attempting to gather together the Meyer estate assets and to administer them as a trust for Mrs. Wachstein, because Pollack, who was in possession of some of the assets, took the position, apparently at the instance of his wife, that the will of Ernest Meyer had never been
carried out and that the remaining assets were not all properly in the Wachstein trust but comprised three equal, undivided shares, one belonging to the trust and the others to Jennie and Ray Meyer. It was his view that the pending application for appointment of an administrator c.t.a. of the Ernest Meyer estate should be prosecuted before anything was done to continue the administration of the Wachstein trust.
Because of Pollack's attitude Mrs. Wachstein filed a complaint August 20, 1959 to have him removed as a co-trustee. In that complaint she stated that while she did not know the full extent of the property in the trust estate, it consisted, as far as she knew, of a parcel of real property in Newark, 84 shares of stock of American Telephone & Telegraph Company having a value of $6,720, and cash in various specified banks aggregating approximately $13,200. The real property was said to consist of a three-story building returning commercial rents of ...