Caruso's Will, In re

• Decision Date: 07 March 1955
• Docket Number: No. A--83,A--83
• Citation: 112 A.2d 532,18 N.J. 26
• Parties: In the Matter of the Probate of the Alleged Will and Codicil of Nicolo CARUSO, Deceased.
• Court: New Jersey Supreme Court

Page 26

18 N.J. 26

112 A.2d 532

In the Matter of the Probate of the Alleged Will and Codicil of Nicolo CARUSO, Deceased.

No. A--83.

Supreme Court of New Jersey.

Argued Jan. 17, 1955.

Decided March 7, 1955.

Paul T. Huckin, Englewood, argued the cause for the appellant executrix (James A. Christiano, West Orange, attorney).

Frederick J. Waltzinger, Newark, argued the cause for the respondent Lawrence Caruso.

Abraham I. Harkavy, Newark, argued the cause pro se and for the respondents David Green and Frank J. Brunetto, Jr. (Harkavy & Lieb, Newark, attorneys).

The opinion of the court was delivered by

HEHER, J.

We are here concerned with the propriety of assessing the estate for the services of counsel and disbursements made in an unsuccessful will contest.

Lawrence Caruso interposed a caveat to the probate of a writing purporting to be the will of his father, who died April 19, 1951; and after protracted hearings characterized by the deep emotion and bitterness so often engendered by such family division, there was judgment on July 30, 1953, in the Essex County Court, sustaining the proffered writings as the deceased's duly executed will and codicil, the expressions of a sound mind free of fraud or undue influence, yet affirming that the caveator 'had reasonable cause for contesting the validity' of the will and codicil, and retaining jurisdiction of the action 'to permit applications for allowance of fees and costs by the attorneys for all the interested parties.'

On December 23, 1953 a 'supplemental judgment' was entered in the County Court, reciting the earlier judgment and the finding therein made of 'reasonable cause' for the contest and the retention of jurisdiction of the question of counsel fees and costs, and allowing counsel fees aggregating $8,500, costs in the total sum of $822.65, including $768 for the price of the trial transcript, $500 each to the proponent's and the contestant's handwriting experts, a grand total of $10,322.65, all charged to the estate of the deceased.

These are the fee allowances to counsel: $400 to David Green for services to the proponent; $4,000 to Harkavy and Lieb, Green's successors as counsel to proponent; $600 to Frank J. Brunetto, Jr., for his representation of Mary Caruso, a daughter of the deceased; and $3,500 to Frederick J. Waltzinger, representing the contestant.

On February 5, 1954 the executrix served and filed a notice of appeal from the judgment 'entered December 23, 1953, relative to the finding that the caveator had reasonable cause for contesting the validity of the will and codicil and to the allowance of fees and costs.'

There were cross-appeals by counsel: David Green and Frank J. Brunetto, Jr., each from the allowance of 'a counsel fee to the cross-appellant.'

On motion of Harkavy and Lieb, for themselves and David Green, and with the consent of the cross-appellant Brunetto, the appeal of the executrix was dismissed by the Appellate Division of the Superior Court on April 7, 1954, and the cross-appeals 'withdrawn'; and the cause is here by certification at the instance of the executrix.

The order of the Appellate Division dismissing the appeal does not declare the ground of the dismissal. The motion to dismiss was rested on these alleged transgressions of the rules of court: (1) the notice of appeal 'is vague and uncertain' and fails to identify the allowances to Harkavy and Lieb and Green as the subject matter of the appeal conformably, it is said, to R.R. 1:2--8(b) and R.R. 2:2--5; (2) the deposit required by R.R. 1:2--10 and R.R. 2:2--5 was not made; and (3) the appendix and brief were not served in accordance with R.R. 1:7--1 and R.R. 2:7--1.

I.

The executrix asserts an 'abuse of discretion' in the dismissal of the appeal. Recourse is had to R.R. 1:1--8, providing for a relaxation of the rules where 'strict adherence' will work 'surprise or injustice.'

We are clear that in both form and substance the notice of appeal satisfies the requirements of R.R. 1:2--8(b). And while there was a conceded failure to make the deposit for costs directed by R.R. 1:2--10, and assuming that in the special circumstances there was not timely service of the appendix and brief, we are yet of the view that these defaults should not be permitted to foreclose consideration of the meritorious question, especially since it concerns the allowance of counsel fees, the cost of expert testimony, and other expenses incurred by the unsuccessful contestant, all charged to the estate of the deceased. Such rule violations are not, however, to be deemed minor, ordinarily entailing no adverse consequences; these rules are designed to expedite the judicial process and their relaxation is not to be the usual course.

But it is now urged Contra that neither this court nor the Appellate Division 'can review a question not decided by the judgment which is made the basis of the notice of appeal'; and that here the appellant, by this appeal taken from the supplemental judgment of December 23, 1953, seeks a review of the finding of reasonable cause for the contest incorporated in the earlier judgment of July 30, 1953, and so the 'portion of the notice of appeal' directed to a review of the 'adjudication' by the trial court that the caveator had 'reasonable cause' is a 'nullity,' as 'an attempt to secure a review' of the earlier judgment 'after the time for appeal had expired, R.R. 1:3--1,' and the Appellate Division had and this court now has jurisdiction to review only the propriety of the allowances made by the later judgment. We hold the contrary view.

In such an action, if probate be refused, the court in its discretion may make an allowance to be paid by the proponent of the will or codicil, or out of the estate of the deceased and if probate be granted, the court 'may make an allowance to be paid by the contestant,' yet if it shall appear that the contestant 'had reasonable cause for contesting the validity of the will or codicil, the court may make an allowance to both the proponent and the contestant, to be paid out of the estate.' R.R. 4:55--7(e).

Thus, the power is in essence discretionary, according to the equities arising from the particular circumstances, contained by the principle of the rule of court; and the complaining executrix could not be aggrieved in this regard until there was definitive adverse judicial action, and there was none such until the allowances were made, and the inquiry to this end was expressly reserved by the court itself in the earlier judgment. The finding of reasonable cause for the contest was not in itself prejudicial to the executrix; it could only become so when made the basis of an allowance of fees and costs under the enabling rule, discretionary action still notwithstanding the conclusion of cause.

It is, of course, fundamental to the jurisdiction of the appellate tribunal that the appeal be taken within the time limited. And the judgment or decree of a court of equitable or probate jurisdiction is not the less final in its nature because 'some future orders of the court may possibly become necessary to carry such final decree into effect.' Stovall v. Banks, 10 Wall. 583, 19 L.Ed. 1036 (1871). Compare Town of Enfield v. Hamilton, 110 Conn. 319, 148 A. 353 (Sup.Ct.Err.1930). But while the earlier judgment here embodies a final determination of the validity of the will and codicil, the question of whether in good discretion there should be an allowance for counsel fees and disbursements, chargeable to the unsuccessful parties or the estate, was reserved for a hearing on notice to the parties; and thus the right of appeal, unquestionable as it is even though it concerns discretionary action, did not come into being until the judgment or order to that end was entered; and in this view there was a timely appeal under R.R. 1:3--1.

II.

On the merits, the contention is that Judge Speakman's findings of the existence of testamentary capacity and the absence of fraud and undue influence are inconsistent with the hypothesis of 'reasonable grounds' to 'suspect the validity of the will and codicil' and to 'institute and maintain the long-drawn-out expensive contest.' It is said that we have here a contest of a will and codicil 'whose terms the court held to be in all respects natural';--a contest based on the asserted want of testamentary capacity 'when the necessary inference of the contestant's own testimony affirmatively shows there was capacity,' on 'alleged fraud when no argument or evidence thereon independent of undue influence was advanced,' on a charge of 'undue influence wherein there was 'no substantial evidence of the exercise of undue influence,'' the finding of the County Court, on 'a belated charge of forgery which was supported solely by the testimony of one handwriting expert and was completely illogical, unreasonable and improbable under all the circumstances,' a contest 'which was foreseeably going to be expensive, bitter and involve 'unfortunate' testimony of brother against sister,' again quoting from the findings of the County Court.

In fine, we are told that to justify such a charge against the estate there must needs be a showing that 'the validity of the will was not only questionable but there was reasonable cause for actually Contesting it,' related to the 'practical effect of a successful contest,' the 'size of the estate and the probable expenses of litigation,' and the 'reasonably anticipated result.' So assayed, the contestant's action is characterized as 'unreasonable and litigious,' so much so as to 'condemn him in costs,' including the expense of the transcript and his own handwriting opinion evidence, the fee of his own counsel, and 'all other counsel fees.' Reference is had to Perrine v. Applegate, 14 N.J.Eq. 531, 539 (Prerog.1862).

For reasons of economy, we have not been provided with a transcript of the testimony, comprising 1350 pages. There is no contention that the services rendered by...