Price, Sullivan and Lewis. The opinion of the court was delivered by Price, S.j.a.d.
The instant appeal seeks the reversal of a judgment of the County Court, Probate Division, denying an application by plaintiff Stella E. Bencel for the entry of a judgment declaring her husband, Joseph A. Bencel, to be dead. Pursuant to an order of this court, the attorney of the respective next of kin of Thomas Joseph Bencel, Lewis George Batson, Jr., Michael J. Husti and George Monti, was permitted to participate in this appeal as amicus curiae.
The trial court determined that plaintiff had failed, both factually and legally, to establish her case. We disagree.
We have considered the evidence hereinafter recited and, pursuant to the authority of R.R. 4:53-1, have made our own findings of fact. Nowhere in the record is there any challenge of the "credibility of the witnesses." We are fully convinced that the evidence established that on July 19, 1961 the five men above-mentioned, together with one Michael Simson,
owner and operator of a motor boat, "One More," left Brielle by said boat for a day's deep-sea fishing trip off the coast of New Jersey. The fishing grounds to which they were planning to go were in excess of 16 miles offshore. The men have not since been seen alive and their bodies have not been found.
The proceedings in the County Court were initiated by the filing of a complaint by Stella E. Bencel aforesaid, on the basis of which the court issued an order, directed to Barbara Simson, wife of Michael Simson, and to various life insurance companies which had issued policies on the life of plaintiff's husband, requiring that they show cause "why a judgment should not be rendered declaring Joseph A. Bencel to be dead." On the return of said order on June 8, 1962 no one other than plaintiff's counsel appeared. Parenthetically, it is noted that all of the aforesaid life insurance policies were honored by payment of the proceeds thereof to plaintiff as the named beneficiary thereof on the "death" of her husband.
Although the insurance companies have made such payments, the instant appeal from the adverse judgment of the County Court is prosecuted because of the detrimental effect of the judgment in other areas vital to appellant. For similar reasons, those who have been granted the right to participate in the appeal as aforesaid join in seeking a reversal of the judgment as improvidently entered. It is asserted that in view of the aforesaid judgment and the consequent present inability of Stella Bencel to secure appointment as personal representative of her husband's estate, "her rights and consequently those of the other survivors * * * are in jeopardy, and substantial and irremediable prejudice may result." In this connection it is emphasized that in pending litigation in the United States District Court, stemming from the alleged deaths of the occupants of the boat, plaintiff is jeopardized by the refusal of the County Court in the instant case to adjudge that the proofs submitted warranted a finding that the said Joseph A. Bencel is dead. The following statement, descriptive of that litigation, appears in the brief submitted by counsel, amicus curiae:
"There is presently pending in the United States District Court an action based on Wrongful Death on behalf of Rose H. Bencel, Margaret Ann Batson, Mary Husti Vegh, and Julia Monti. There is presently in issue in the Federal Court proceeding the status of these parties as well as the status of Mrs. Simson [the aforesaid Barbara Simson] who seeks to limit liability under 46 U.S.C.A. 183. There is a two year limitation period in both the Death on the High Seas Act. 46 U.S.C.A. § 763 and in N.J.S.A. 2:31-3."
The following amplification of said statement appears in an affidavit of counsel submitted on his application to be admitted amicus curiae:
"On behalf of our clients in the admiralty litigation we submit that insofar as their rights accrue under the Death on the High Seas Act, they are required by that statute to bring an action within two years of the date of death. The dilemma they face is one where the Admiralty Court may find they have no standing.
The inability of the widows to obtain letters of administration involves very serious problems for them and for their children. Must they wait seven years before they can pursue their remedies under the appropriate death act? There is a question whether they might not be barred after two years. * * * Certainly the courts must be concerned with a situation ...