Order on cross motions for taking of oral depositions.
On November 24, 1955, John Garey died testate in Elizabeth, New Jersey. His will was admitted to probate on December 5 of that year and the executors, Carlton R. Garey and John R. Garey, named by him duly received letters testamentary on that date. Pursuant to R.R. 4:105-2, four of the decedent's daughters by a complaint filed June 17, 1960 instituted an action for an order to show cause why the executors should not account, no accounting having been previously made. The order issued and on its return date, August 9, 1960, judgment was rendered directing them to account within 45 days. The account was filed October 4, 1960.
For the purpose of inquiring into the conduct of the executors, Jay F. Dailey, Esq., the attorney for the four daughters who are legatees, served a notice on the executors' attorneys to take oral depositions of the executors at his office on October 31, 1960. They appeared on that date but he refused to examine them, insisting that one be excused
from the room while the other was being examined. His contention was they were merely witnesses and that under R.R. 4:20-2 examination of them could be had out of the presence of each other. John W. Hayden, Jr., Esq., attorney for the executors, refused to permit this, contending that they were "parties" and that under that same rule parties always have a right to be present when a witness is being examined. Mr. Dailey on November 4, 1960 obtained an order to show cause why an order should not be made directing each executor to be examined in the absence of each other. The attorney for the executors on the other hand served him, apparently on that same day, with a notice to take oral depositions of his four clients at their offices in Newark.
Mr. Dailey thereupon made application for and did obtain an order for the executors to show cause why an order should not be made (a) directing that the depositions of Agnes G. Bethlehem, Marion L. Garey, Margaret S. Dyke and Estelle G. Richardson should not be taken pursuant to notice given in connection therewith, by Schreiber, Lancaster & Demos, Esqs., attorneys for Carlton R. Garey and John R. Garey, dated November 1, 1960, or (b) that the depositions of Agnes G. Bethlehem, Marion L. Garey, Margaret S. Dyke and Estelle G. Richardson be taken only at some designated place other than that stated in the notice, and (1) that the taking of said depositions be at the expense of Carlton R. Garey and John R. Garey; (2) if taken out of the State of New Jersey, that the attendance of counsel for said persons at the place designated for the taking of their depositions be authorized at the expense of said Carlton R. Garey and John R. Garey, or (c) that the taking of said depositions be only on written interrogatories, or (d) if the taking of said depositions be authorized, that the scope of said examination be limited as to such matters as this court shall determine to be proper, and (e) if authorized, such depositions shall be taken only after the completion of the taking of depositions of Carlton R. Garey and John R. Garey, executors.
Briefs were filed and oral argument was heard.
R.R. 4:20-2 reads as follows:
"4:20-2. Orders for the Protection of Parties and Deponents.
After notice is served for taking a deposition by oral examination, upon motion seasonably made by any party or by the person to be examined and upon notice and for good cause shown, the court may make an order that the deposition shall not be taken, or that it may be taken only at some designated place other than that stated in the notice, or that it may be taken only on written interrogatories, or that certain matters shall not be inquired into, or that the scope of the examination shall be limited to certain matters, or that the examination shall be held with no one present except the parties to the action and their officers or attorneys, or that after being sealed the depositions shall be opened only by order of the court, or that secret processes, developments, or research need not be disclosed, or that the parties shall simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the court; or the court may make any other order which justice requires to protect the party or witness from annoyance, embarrassment, or oppression."
The first question presented is: Are executors in proceedings arising from an estate accounting "parties," and are they parties to an action? Black's Law Dictionary , 3 d ...