Badenhop's Estate, In re

• Citation: 161 A.2d 318,61 N.J.Super. 526
• Decision Date: 25 May 1960
• Docket Number: No. 66222,66222
• Parties: In the Matter of the ESTATE of Robert BADENHOP, Deceased.
• Court: New Jersey County Court. New Jersey County Court — Probate Division

Page 526

61 N.J.Super. 526

161 A.2d 318

In the Matter of the ESTATE of Robert BADENHOP, Deceased.

No. 66222.

Monmouth County Court Probate Division, New Jersey.

May 25, 1960.

J. Victor Carton, Asbury Park, for plaintiffs (Durand, Ivins & Carton, Asbury Park, attorneys).

Thomas J. Smith, Red Bank, for defendants (Parsons, Labrecque, Canzona & Blair, Red Bank, attorneys).

SIMMILL, J.C.C.

On September 20, 1959 Robert Badenhop died, testate, leaving a will dated January 7, 1954, a codicil dated February 8, 1954, and an alleged codicil dated September 11, 1959. The present applicants are executors and trustees named in the will. Both codicils republish the will. Upon being presented to the Surrogate of Monmouth County he adjudicated that doubts arose as to the due execution of the second codicil. On October 23, 1959 an order to show cause was obtained why the will and codicils should not be probated, and on the adjourned return date thereof, December 11, 1959, the court entered judgment denying probate of the second codicil to the will. On January 22, 1959 Selma A. Badenhop filed a notice of appeal from that judgment. If the second codicil is effective, Selma A. Badenhop will gain pecuniarily tax-wise to the ultimate pecuniary detriment of the executors and trustees. Accordingly, the pecuniary interest motivates the widow in prosecuting the appeal and pecuniary interest likewise would motivate the executors and trustees in opposing the appeal.

The principal problem which confronts the executors and trustees is with relation to an 'in terrorem' clause as set forth in the twelfth paragraph of the will, which reads as follows:

'Twelfth: Having given due consideration to the devises, gifts and bequests made in this, my Last Will and Testament, the same have been so made on the express condition that none of the beneficiaries shall oppose or contest the probate or validity of this Will in any manner. Any beneficiary so opposing or contesting the said probate or validity of this Will, or in any way assisting in such act or acts, shall automatically forfeit whatever devise, gift or bequest he or she would have been entitled to receive under the terms of this, my Last Will and Testament.'

Accordingly they sought the aid of the Monmouth County Court, Probate Division, and requested this court to lend its advice and direction as to whether or not they should participate in the appeal with a view to sustaining the judgment of the Monmouth County Court denying probate of the second codicil because the twenty-third paragraph of the will required the executors and trustees 'to do all lawful things to carry out its terms.'

The widow opposes the application and raises two arguments wherein she contends the court should not lend its aid, first, because it is without jurisdiction to construe the will. She suggests that the proper forum is the Superior Court, Chancery Division, and cites Donnelly v. Ritzendollar, 14 N.J. 96, 106, 101 A.2d 1 (1953), as the authority for this contention. The court's research indicates that she had stronger reeds on which to rely. Brown v. Fidelity Union Trust Co., 128 N.J.Eq. 197, 204, 15 A.2d 788 (E. & A.1940) holds that the authority of the Orphans Court to construe a will is incidental to its jurisdiction to decree distribution; and In re Morrisse's Estate, 91 N.J.Eq. 477, 110 A. 118 (Prerog.1920) , provides that when an estate is not ripe for distribution, no construction of the will can there (in the Probate Division of County Court) be obtained.

However, the New Jersey Constitution, Art. VI, Sec. IV, Par. 5, provides:

'The County Courts, in civil causes including probate causes, within their jurisdiction, and subject to law, may grant legal and equitable relief so that all matters in controversy between the parties may be completely determined.'

In re Sotnikoff, 34 N.J.Super. 422, 425, 112 A.2d 754 (App.Div.1955) provides that the County Court has jurisdiction and cognizance of important phases of the action, such as the admission to probate of the will and codicils. Having cognizance of the cause under these circumstances, the court receives under the Constitution the jurisdiction further to give the instructions sought. Carton v. Borden, 8 N.J. 352, 85 A.2d 257, 259 (1951), disposes of the matter inversely in discussing the jurisdiction of the Superior Court and therein states:

'Nor can there be any doubt of the jurisdiction of the Superior Court to grant part of the relief sought by the plaintiffs, but in its discretion it may decline to exercise such jurisdiction in a case where a will has been probated in the County Court where the estate is being administered there, and where the County Court Likewise has jurisdiction to grant the relief sought by the plaintiffs.'

In addition Dicta in Donnelly v. Ritzendollar, supra, (14 N.J. 96, 101 A.2d 3) would indicate that the 'jurisdiction of this court (Chancery Division) and in the County Probate Court is co-extensive.'

This court therefore rules that the County Court obtained jurisdiction when the matter came on for hearing before it as to the probate of the will and codicils; that it retains such jurisdiction and has jurisdiction coexistently with the Superior Court in connection with the determination of the matters in controversy. To further point up the anomaly of the situation the County Court could very well have transferred the case to the Chancery Division and within five minutes, in the same courtroom, with the same judge presiding, could have determined the matter without controversy as to jurisdiction.

However, the widow further contends that the plaintiffs are not entitled to the advice and directions of the court because the will is plain and unambiguous and that the court will not give instructions dependent upon a future event which may or may not take place and that the court should not give legal advice. She cites numerous cases as regards this contention; however, none of them bear directly upon the proposition presently presented. The executors and trustees are between the Scylla of permitting the appeal to go unopposed and the Charybdis of jeopardizing their inheritance by reason of the In terrorem clause, and in such a case the court is of the opinion that the executors and trustees may with impunity adopt the remedy set forth in N.J.S. 2A:16--55, N.J.S.A., which provides as follows:

'A person interested as or through an executor, administrator, trustee, guardian, receiver, assignee for the benefit of creditors or other fiduciary, creditor, devisee, heir, next of kin, or cestui que trust, in the administration of a trust or the estate of a decedent, an infant, lunatic, insolvent or other person may have a declaration of rights or legal relations in respect thereto, to:

'a. Ascertain any class of creditors, devisees, legatees, heirs, next of kin or others; or

'b. Direct the executor, administrator, trustee, guardian, receiver, assignee for the benefit of creditors or other fiduciary to do or abstain from doing any particular act in his fiduciary capacity; or

'c. Determine any question arising in the administration of the estate, trust or guardianship, including the construction of wills and other writings.'

The court is aware that in invoking the provisions of this act there must be an actual controversy and the action must be an adversary proceeding. Condenser Service & Engineering Co. v. American Mutual Insurance Co., 45 N.J.Super. 31, 131 A.2d 409 (App.Div.1957), Rosenberg v. D. Kaltman & Co., 28 N.J.Super. 459, 101 A.2d 94 (Ch.Div.1953), and numerous other cases. However, the Uniform Declaratory Judgments Law is intended to furnish relief not obtainable by other procedures. Carls v. Civil Service Commission, 31 N.J.Super. 39, 105 A.2d 874 (App.Div.1954), affirmed 17 N.J. 215, 111 A.2d 45 (1955). And whether or not a court should...