Appeal Of Egge.

• Decision Date: 10 July 1947
• Docket Number: No. 7802.,7802.
• Citation: 54 A.2d 240
• Parties: Appeal of EGGE.
• Court: New Jersey Prerogative Court

54 A.2d 240

Appeal of EGGE.

No. 7802.

Prerogative Court of New Jersey.

July 10, 1947.

Appeal from Surrogate's Court, Hudson County.

Proceeding in the matter of the petition of Elizabeth Egge that her absent husband be declared dead. From an order of the Surrogate's Court of Hudson County refusing to amend its decree adjudging that petitioner's husband, William A. Egge, who had absented himself from or concealed himself in state for more than seven years last past, was presumed to be dead, petitioner appeals.

Order reversed with direction.

Syllabus by the Court

.

1. On an application to surrogate by E. E. to declare her husband W. A. E. dead under the provisions of R.S. 3:42-12, R.S. 3:42-13 and R.S. 3:42-14, N.J.S.A., the surrogate, after a hearing, signed a decree reciting, among other things, ‘It is on this 20th day of March, A.D. 1946, ordered, adjudged and decreed that the said W.A.E. is presumed to be dead’, held, the surrogate did not follow the direction of the statute and failed to grant the relief sought; and further held, surrogate is directed to amend the decree by substituting in the decree the word ‘declared’ for the word ‘presumed’.

Nicholas S. Schloeder, of Union City, for appellant.

Daniel J. Murray, of Bayonne, for Surrogate of Hudson County.

EGAN, Vice Ordinary.

This is an appeal from an order made by the surrogate of Hudson County dated March 19, 1947, denying the application of the appellant to amend or correct a decree in this cause dated March 20, 1946.

The appeal was taken under the provisions of R.S. 2:31-92, N.J.S.A., allowing appeals to this court from surrogates' orders.

The facts are not disputed. The question involved is whether the decree issued by the surrogate on March 20, 1946, grants the relief which the parties sought under the statutes. I do not believe it does.

The appellant, Elizabeth Egge, lived with her husband, William A. Egge, until November 10, 1924, at the premises then known as 675 Hamilton Avenue (now 827-76th Street), in the Township of North Bergen, Hudson County, in a dwelling owned by her. Her husband William disappeared at the time aforesaid and has not been heard from or located since.

On February 6, 1946, she petitioned the surrogate in accordance with the provisions of R.S. 3:42-12 et seq., N.J.S.A., praying that her husband be declared dead. The matter was legally advertised and a hearing before the surrogate was held on March 18, 1946. The surrogate concluded that the application for relief should be granted, and on March 20, 1946, he issued a decree reciting that the jurisdictional facts had been complied with, and ended it as follows: ‘It is on this 20 day of March, A.D. 1946, ordered, adjudged and decreed that the said William A. Egge, is presumed to be dead.'

Mrs. Egge subsequently contracted to sell her house free and clear of the curtesy right of her husband as permitted by R.S. 3:42-5, N.J.S.A. The purchaser of the premises objected to the form of the decree stating that it did not ‘declare’ William A. Egge to be dead, but that he is ‘presumed’ to be dead; and in the circumstances, the title to the premises may be burdened with the husband's right of curtesy.

The appellant now seeks an order directing the surrogate to correct and reform his decree to comply with the statute. The surrogate, however, contends there is nothing wrong with the decree, that the wording is proper, and that it conforms to the statute.

No question is raised as to Mrs. Egge's right to have the required relief afforded by the statute. The question involved in this proceeding is whether the word ‘declare’ should be substituted for the word ‘presumed’ in the decree. The surrogate evidently felt the petitioner was entitled to the statutory relief, however, he erred in his method of expressing it. 10 A.L.R. 526.

The provisions of the statute applying are as follows:

R.S. 3:42-12, N.J.S.A.: ‘When the last known residence, of a person presumed dead pursuant to this chapter, was within this state, the ordinary or surrogate of the county where he last resided shall, upon the written application of his spouse, any next of kin, creditor, executor, administrator or beneficiary under an insurance policy on his life, make an order to show cause before him, at a time and place specified therein, not less than thirty days nor more than three months from the date of the order, why a decree should not be entered declaring such person to be dead, or, if there is personal property belonging to him, why letters of administration should not be granted to the next of kin making application or some other person, which order shall be published in the manner directed by the ordinary or surrogate who shall grant the order.'

R.S. 3:42-13, N.J.S.A.: ‘If at the time and place designated in the order to show cause mentioned in section 3:42-12 of this title, or to which the same may be adjourned, it is proved that the person concerned has remained beyond the sea or absented himself from or concealed himself in this state for the entire period of seven years last past, and has not been heard from or of during that time, and no sufficient cause is shown to the contrary, the ordinary or surrogate may make a decree declaring such person to be dead and may grant letters of administration of his personal property to the next of kin applying therefor, or to some other fit and proper person, who shall give bond to the ordinary in the manner required upon the grant of letters of administration in other cases.'

R.S. 3:42-14, N.J.S.A.: ‘When a person has been declared to be dead under authority of sections 3:42-12 and 3:42-13 of this title and such person would, if living, be entitled to an inchoate or consummate right or estate or dower or curtesy in real estate, any person owning an interest in such real estate may assign, convey, sell, mortgage and lease or devise such interest, estate or right as he may have therein, free and clear of the right or estate of dower or curtesy, and a deed, release, receipt, assignment, discharge or covenant made for such purpose shall, when duly executed and acknowledged in the manner provided by law for the record of deeds of real estate, release and bar all right or estate of dower or curtesy therein of the person so declared to be dead.'

The statutes direct the surrogate to ‘make a decree declaring such person to be dead.’ That declaration is clearly expressed in R.S. 3:42-12, 3:42-13 and 3:42-14, N.J.S.A.

The surrogate used an obsolete form based on Sections 30 and 31 of the Orphans' Court Act of 1898, 3 Comp.St.1910, pp. 3823 and 3824. These sections fail to mention a declaration of death, and provide for the issuance of letters of administration. Section 31 uses the language ‘the said nonresident shall be presumed to be dead’. Section 30 is cited by the revisers of 1937 as one of the sources for R.S. 3:42-12 and 3:42-13, N.J.S.A.

The language of these sections, however, in so far as references made to the declaration of death are concerned, has its source in Chapter 255 of the Laws of 1911, a supplement to the original act of March 7, 1797. Charles Kocher, in his book, ‘Kocher's New Jersey Probate Law, Vol. 1’, at page 280, makes this point...