"This is a suit to set aside a release given by the complainant, who claims to be the widow of Michael Mullaney, to defendants, who are his next of kin and heirs at law. That the case may be understood, it will be necessary to state the situation as it was prior to the giving of the release: Michael Mullaney died intestate at Bayonne December 2, 1899. He left personal property estimated at $7,297.29, and real estate estimated at $6,400. At the time of his death, Mrs. Mullaney was not living with him. She says that on July 4, 1862, it was agreed, in the city of New York, that they should become man and wife. There was no marriage ceremony, but the undisputed fact is that after that time they lived together for about twenty years, and most of the time in Bayonne. Then she left him, as she alleges, because of his cruel treatment, and she went to Newark, where she has since resided. For nearly twenty years she has been supporting herself at domestic service, or by working out by the day. When Michael died she applied for letters of administration. This was resisted by Michael's next of kin on the ground that she was not in fact his widow. The case was heard by the Hudson county orphans' court. A large number of witnesses were sworn on both sides. On February 2, 1900, the last witnesses were called, and the case summed up. The court reserved its decision. Three days thereafter the release in controversy was procured. On February 9th application was made to the orphans' court to open the case, in order that the release might be put in, for the purpose of showing that Mrs. Mullaney had no further interest in the estate, and that consequently she was not a proper person to administer. The paper did not, in terms, contain any waiver of her right to do so. It only released her right, title, and interest in and to the estate, real and personal, of her late husband. The application was resisted, but the court granted it, and then counsel for the widow asked to be permitted to show that the release was obtained by fraud. The court granted the request, and thereupon evidence was given on both sides on this new issue. The decision, as appears by the judge's opinion, but not by the order or decree, was that there was no fraud, and that, this being so, it was unnecessary to decide any other question. The order was that the prayer of the petitioner, asking for administration, be denied. Then Mrs. Mullaney filed this bill, and, the case coming on to be heard, it was stipulated that the evidence taken in the orphans' court should be used here. No additional evidence, either on the question of marriage or of fraud in procuring the release, was taken in this court.
"I shall deal with the first of these questions very briefly. It seems to me very plain that, while there was no ceremonial marriage, the connection was matrimonial, and not meretricious. In addition to the evidence of Mrs. Mullaney that there was a verbal agreement of marriage, the following facts appear: Michael Mullaney kept a grocery and liquor store in Bayonne. He was also for many years postmaster. During the twenty years that he and Mrs. Mullaney lived together, they regarded each other, and were treated by their customers and by their friends and relatives, as man and wife. In their correspondence, some of which is in evidence, they recognized each other as such. There was one child born to them—a son, who died when about eight years old. The inscription over his grave was as follows:
"'Our Little Simey.
"'Simon K. son of Michael & Pauline Mullaney died March 23, '73, age 8 years, 3 mos. & 10 days.
"'Sleep on my Babe and take thy rest
"'God called thee home.
"'He thought it best.
"'Selected by his grandmother.'
"After the separation he told the witness Frank Hovell that he could not sell the lots because he could not get his wife to sign off. The defendants' witnesses, in so far as they do not corroborate complainant's witnesses, apparently draw their conclusion that the cohabitation was illicit only from the admitted fact that there was no ceremonial marriage. The evidence shows that there was an interchange of consent, and that this was followed by cohabitation, accompanied with matrimonial habit and repute.
"The important question to he determined is whether this court should avoid the release for fraud. An objection was made in limine that this question, having been decided by the orphans' court, became res adjudicate, and not re-examinable here. I think there are two answers to this objection: First, the orphans' court had no jurisdiction to decide the question; second, if it had, its decision thereon was not conclusive, for the reason that the point decided was only incidentally cognizable.
"The jurisdiction of the orphans' court is limited to those matters which have by statute been confided to it. It has no inherent jurisdiction to decide whether a release of lands or personal property is voidable for fraud. The utmost that can be claimed is, that it may determine questions of law and equity, the decision of which is necessary to the decision of some other matter expressly committed to it (Dunham v. Marsh, 52 N. J. Eq. 261, 30 Atl. 473), just as this court may decide legal questions when they arise incidentally and collaterally in a suit rightly instituted for equitable relief (Kean v. Union Water Co., 52 N. J. Eq. 813, 31 Atl. 282, 46 Am. St. Rep. 538). The orphans' court had power to decide the question whether Mrs. Mullaney was in fact the widow of Michael Mullaney, for letters of administration could only be granted to her on this foundation; and, if the question were in doubt, it would necessarily hear proof on the subject. But if that court could perform its statutory duty without trying questions properly cognizable by some other tribunal, it would be without jurisdiction to pass upon them. Thus it has been held in several cases mat when an administrator makes application to sell lands to pay debts, the estate not being insolvent, the orphans' court has no power to determine the validity of the claims in respect of which the administrator bases his application. The determination, under our system, belongs to other courts. Miller v. Pettit, 16 N. J. Law, 421; Vreeland v. Schoonmaker, 16 N. J. Eq. 512; Smith v. Smith's Administrator, 27 N. J. Eq. 445; Middleton v. Middleton, 35 N. J. Eq. 115. It has also been held, where the estate is not insolvent, the orphans' court has no power to adjudge that a creditor has, by inequitable conduct, discharged it from liability to him. Partridge v. Partridge, 46 N. J. Eq. 434, 19 Atl. 602; Id., 47 N. J. Eq. 601, 22 Atl. 1075. Now, there is no more reason why the orphans' court should have assumed jurisdiction to try the validity of the release under consideration than there would be for a court of law, in an action of ejectment, to adjudge whether the deed under which grantee claimed was obtained by fraudulent misrepresentation. The law court would adjudge in accordance with the legal title, and would leave the grantor, in the case supposed, to his remedy in equity; and so, in like manner, the orphans' court should have assumed that the release was valid, until it was decreed by this court to be fraudulent and void. It was proper for it to have received the release as a valid instrument, and to have given it such weight as it was entitled to, in determining the question of administration. The orphans' court had before it the evidence on which to decide whether Mrs. Mullaney was or was not Michael's widow. It had proof of who were next of kin. It had, too, Mrs. Mullaney's release. It was therefore in a position to decide to whom, under the then existiug circumstances, administration should be committed. It is true that subsequent litigation in another tribunal might have varied the rights of the parties as they then appeared to be, but this was only a not uncommon instance of a right ascertained by one tribunal, acting within its sphere, being subsequently modified by the decision of another tribunal acting also within its sphere. In other words, the mischief, if mischief it was, arose out of the fact that—such is the complexity of human affairs—it has been found convenient, if not necessary, to apportion the judicial work of the state among the several courts, instead of giving to any one unlimited jurisdiction to deal with every phase of every subject that might come before it. The proceeding to determine the fraudulent character of the release was therefore coram non judice, and the determination worked no estoppel.
"If I had come to the conclusion that the court had jurisdiction to determine the ques tion of fraud, I should still have thought that its determination would not have been conclusive. Lord Chief Justice De Grey thus expresses himself in the leading case of the Duchess of Kingston: 'From the variety of cases relative to judgments being given in evidence in civil suits, these two deductions seem to follow as generally true: First, that the judgment of a court of concurrent jurisdiction directly upon the point is, as a plea, a bar, and, as evidence, conclusive between the same parties upon the same matter directly in question in another court; secondly, that the judgment of a court of exclusive jurisdiction directly upon the point is in like manner conclusive upon the same question between the same parties coming incidentally in question in, another court for a different purpose. But the judgment of a concurrent or exclusive jurisdiction is neither evidence of any matter which came collaterally in question, though within their jurisdiction, nor of any...
