Conford, Collester and Labrecque. The opinion of the court was delivered by Collester, J.A.D.
[102 NJSuper Page 228] This is an appeal from an order entered in a summary proceeding before the Passaic County Court, Probate Division, denying defendant's petition to revoke
letters testamentary issued to plaintiffs by the Passaic County Surrogate as executors under the last will and testament of Barbara Kortvellessy, deceased, and to set aside a restraint barring defendant from collecting money due on a mortgage held by her on real property located in the City of Clifton.
Decision on plaintiffs' motion to dismiss the appeal on the ground that it was not one from a final judgment or order was reserved pending oral argument. Defendant's petition to set aside a judgment admitting a will to probate pursuant to R.R. 5:3-4(a) was denied by the County Court. This constituted a final judgment as nothing further remained to be done with respect to the petition and accordingly the motion to dismiss is denied. See In re Costa, 45 N.J. Super. 424, 426 (App. Div. 1957).
The record reveals the following chronology of events leading up to the present litigation. On August 7, 1956 Julius and Barbara Kortvellessy, husband and wife, residing in Clifton, executed a joint will. Under its terms they bequeathed and devised their property to each other. It further provided that upon the death of the survivor, with the exception of a specific devise not here relevant, the residue of their property was to be divided equally among their six children.
On May 10, 1962 Alex Jakimjuk and Rose, his wife, executed a purchase money mortgage to Julius and Barbara in the amount of $15,000 on property located in Clifton. Julius died on May 27, 1965. The Passaic County Surrogate probated the joint will as Julius' will on June 8, 1965 and Barbara was duly qualified as executrix.
On July 28, 1965 Barbara made a new will revoking the prior will in which she named her son Frank Korty, nee Kortvellessy, as sole beneficiary. On October 25, 1965 Barbara assigned the mortgage on the Jakimjuk property to Frank and Tania, his wife. In August 1966 Barbara moved to Pennsylvania to live with Frank and Tania in Forest City. She died in a convalescent home in Waymart, Pennsylvania on February 9, 1967. (We were informed at oral argument
that the will made by Barbara on July 28, 1965 was probated in Pennsylvania on February 1, 1968.)
On July 19, 1967 Daniel and Julius Kortvellessy (stepsons of Barbara), who had been named as successor executors in the joint will executed by Barbara and Julius on August 7, 1956, filed a complaint for the re-probate of that instrument as Barbara Kortvellessy's will with the Passaic County Surrogate. The complaint alleged that when Barbara died on February 9, 1967 she was domiciled in Clifton and resided at 15 Rosalie Avenue in that city. The surrogate admitted the will to probate and issued letters testamentary to Daniel and Julius on August 15, 1967.
On September 1, 1967 Daniel and Julius as executors (the plaintiffs herein), filed a complaint in the Passaic County Court for "discovery of assets" pursuant to N.J.S. 3 A:12-11, alleging that Frank and Tania Korty had in their posession assets of the estate which the executors had demanded be turned over to them. The complaint alleged that the Jakimjuk mortgage, upon which there remained due $11,399.16, was an asset of the estate to which the six beneficiaries named in the joint will were entitled. It demanded the entry of a judgment requiring Frank and Tania to appear before the court to make discovery of assets belonging to the estate. Upon filing of the complaint the County Court issued an order to show cause directing Frank and Tania to appear on September 19 to make discovery as to their possession and knowledge of any personal property of Julius and Barbara Kortvellessy, deceased. It also restrained Frank and Tania from disposing of estate assets and from collecting interest or principal due on the Jakimjuk mortgage. It further ordered that Alex and Rose Jakimjuk pay any monies due or to come due on the mortgage to a receiver appointed by the court.
On August 28, five days before plaintiffs' complaint was filed, Frank Korty assigned his one-half interest in the Jakimjuk mortgage to Tania. On September 26 Tania filed a verified petition ...