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Matter of Estate of Madeline Virgilio

Decided: December 11, 1961.

IN THE MATTER OF THE ESTATE OF MADELINE VIRGILIO, DECEASED


Gaulkin, Kilkenny and Herbert. The opinion of the court was delivered by Gaulkin, J.A.D.

Gaulkin

The County Court adjudged that two bank accounts were assets of the estate of Madeline Virgilio, and ordered Josephine Scalpati to deliver all monies in said accounts to Joseph Vecchione, the administrator. Mrs. Scalpati appeals.

The proceeding was commenced with a complaint, filed by the administrator, "for discovery of assets," pursuant to N.J.S. 3A:12-11. The complaint was in three paragraphs.

The first stated that plaintiff was the administrator. The balance of the complaint was as follows:

"2. The said Joseph Vecchione, as the plaintiff, is informed, verily believes and charges, that Josephine Scalpati was holding in trust for the decedent certain monies deposited in the banks and building and loan of Asbury Park, but so far the plaintiff has been unable to obtain the deposit books, nor the amounts being held in trust.

3. The said Josephine Scalpati has said sums of money in her possession, but denies that the same are assets of the Estate of said Madeline Virgilio. On the contrary she alleges that the same was given to her by the said Madeline Virgilio in her lifetime.

WHEREFORE, the plaintiff demands judgment requiring the said Josephine Scalpati to appear before this Court and make discovery as to the said sums of money deposited in accounts in the banks and building and loan in Asbury Park."

There is nothing in the complaint to indicate that the administrator needs discovery. On the contrary, it is clear from the testimony thereafter taken that the administrator required no discovery about these accounts, and that the complaint was in truth for the sole purpose of establishing the estate's right to them.

To begin with, the time of the County Court should not be taken up with proceedings under N.J.S. 3A:12-11 unless the plaintiff truly needs discovery and is unable to obtain the information as readily in any other way. If the plaintiff is prepared to institute suit for the recovery of property belonging to the estate, he can ordinarily obtain all necessary incidental discovery in such litigation, under the appropriate rules. We conceive that the County Court may decline to entertain a proceeding under N.J.S. 3A:12-11 which it finds to be unnecessary.

The accounts had been opened by the decedent with her money but were in the names of decedent and Mrs. Scalpati as joint tenants, either or the survivor to draw, the balance to be the absolute property of the survivor. Since Mrs. Scalpati claimed title, the administrator's suit to establish the estate's right to the funds should have been commenced in the Chancery Division of the Superior

Court. Vineland Shopping Center, Inc. v. De Marco , 35 N.J. 459, 468 (1961); In re Dydo's Estate , 29 N.J. Super. 594 (Cty. Ct. 1954). Cf. Heyer v. Sullivan , 88 N.J. Eq. 165 (Ch. 1917), affirmed 88 N.J. Eq. 595 (E. & A. ...


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