Gray v. Cholodenko

• Decision Date: 21 February 1955
• Docket Number: No. A--94,A--94
• Citation: 34 N.J.Super. 190,111 A.2d 918
• Parties: Warren GRAY, Jr., Plaintiff-Appellant, v. Nathan CHOLODENKO et al., Defendants-Respondents. . Appellate Division
• Court: New Jersey Superior Court — Appellate Division

Page 190

34 N.J.Super. 190

111 A.2d 918

Warren GRAY, Jr., Plaintiff-Appellant, v. Nathan CHOLODENKO et al., Defendants-Respondents.

No. A--94.

Superior Court of New Jersey.

Appellate Division.

Argued Feb. 7, 1955.

Decided Feb. 21, 1955.

Robert S. Hartgrove, Jersey City, argued the cause for plaintiff-appellant.

Fredrick J. Waltzinger, Newark, argued the cause for defendants-respondents.

Before Judges CLAPP, JAYNE and FRANCIS.

The opinion of the court was delivered by

CLAPP, S.J.A.D.

Plaintiff appeals from an order of the Superior Court, Chancery Division, granting defendants' motion to dismiss the action. The motion, which was heard on affidavits, challenged the court's jurisdiction.

By his complaint plaintiff sought redress of various sorts, including (in effect) relief from a decree of 1947, and a judgment of 1949, of the Essex County Surrogate's Court: the first probating his grandmother's will; and the second probating his mother's will. Plaintiff has no case unless relief is given from at least one of these probates.

Of course, the Superior Court has no authority to grant relief from a probate judgment merely because the will is for any reason invalid. Pusillo v. Czajkowski, 25 N.J.Super. 215, 95 A.2d 764 (Ch.Div.1953). But here the substantial issue is, may it grant relief because of fraud on the probate court?

Beyond question, there resides presently in the Superior Court, and theretofore in the Court of Chancery, a general jurisdiction to provide relief, through an independent action (R.R. 4:62--2), as to judgments of all courts, procured by fraud. Dringer v. Erie Railway, 42 N.J.Eq. 573, 577, 8 A. 811 (Ch.1887), affirmed Dringer v. Jewett, 43 N.J.Eq. 701, 13 A. 664 (E. & A.1887); Restatement of Judgments §§ 112--130; Moore, 55 Yale L.J. 623, 653 (1946).

However the Court of Chancery--by way of exception to this rule--refused such relief as to a decree granting probate of a will, McCormack v. Burns, 89 N.J.Eq. 274, 277, 105 A. 70 (Ch.1918); Warren, 33 Harv.L.Rev. 556, 568 (1920), Cf. 41 Harv.L.Rev. 309 (1928); Vincent v. Vincent, 70 N.J.Eq. 272, 62 A. 700 (Ch.1905); Farquhar v. New England Trust Co., 261 Mass. 209, 158 N.E. 836 (Sup.Jud.Ct.1927); In re Broderick's Will, 21 Wall. 503, 88 U.S. 503, 22 L.Ed. 599 (1875), unless the relief could not be given in the probate court, Vincent v. Vincent, supra, 70 N.J.Eq. at page 276, 62 A. 700; Mellor v. Kaighn, 89 N.J.L. 543, 549, 99 A. 207 (E. & A.1916). The anomalous position in which a probate decree was put may be laid historically to an indisposition of the English Court of Chancery to interfere with the Ecclesiastical Courts' 'exclusive jurisdiction', Ryno's Executor v. Ryno's Administrator, 27 N.J.Eq. 522, 524 (E. & A.1875) over the probate of wills of personalty.

There certainly is no good reason under our present Constitution for maintaining any such diffidence and restraint with respect to probate decrees. Cf. Restatement of Judgments § 114 b; Seeds v. Seeds, 116 Ohio St. 144, 156 N.E. 193, 52 A.L.R. 761 (Sup.Ct.1927); 2 Page, Wills (3rd ed.), 95. We hold, then, that the Superior Court has the jurisdiction to grant, in an independent action, equitable relief against probate judgments.

But this does not end the question. For this jurisdiction will not be exercised by the Superior Court where the attack is against a judgment of a court of this State and an adequate remedy can be had in that court. For obvious reasons in such a case the law requires the party charging the fraud, to pursue his remedy usually by motion in the court and in the cause wherein the judgment was obtained. Kearns v. Kearns, 70 N.J.Eq. 483, 488, 62 A. 305 (Ch.1905); Shammas v. Shammas, 9 N.J. 321, 328, 88 A.2d 204 (1952); Restatement of Judgments § 128. With respect to a surrogate's decree and judgment, the appropriate remedy lies in a proceeding before the County Court of the county. N.J.S.A. 3A:2--3; R.R. 5:3--4(b).

The case, then, should have been transferred to the Essex County Court, Probate Division. Not that R.R. 1:27D applies; it cannot be said that the Superior Court lacks 'jurisdiction of the subject matter.' But a very similar principle obtains; a court, generally speaking, ought not to dismiss a cause because it should have been brought before another court in this State. The power to transfer a cause under such circumstances is inherent in the court. Cf. Manda v. State, 28 N.J.Super. 259, 262, 100 A.2d 500 (App.Div. 1953).

Where a case should have been transferred, we on appeal deal with the meritorious questions as though it had been instituted in the proper court. Cf. R.R. 1:27D (b). In effect, here a summary judgment was entered for the defendants on the ground that there was no fraud on the surrogate's court. One of the plaintiff's charges was that his grandmother never executed the instrument probated as her will. If in fact she did not do so, it would be hard to conceive how probate of the will could have been granted in common form without a perjurious deposition purposely false and wilfully given on the part of an attesting witness. A deposition of that nature, if the proofs are clear, convincing and satisfactory, will be held a fraud on the court. Shammas v. Shammas, 9 N.J. 321, 328, 330, 88 A.2d 204, supra; 3 Duke Bar J. 41, 48 (1953); 4 Vanderbilt L.Rev. 338 (1951); cf. Restatement, Judgments, § 126 c, as amended 1948 supplement.

The affidavits made herein by the executor and the witnesses to the will refer to but one visit by them to the testatrix on November 22, 1947; they state she then affixed her mark to the will. But an affidavit on plaintiff's behalf asserts that when the executor, one of the witnesses and another person visited testatrix that day, no will was executed. We need go no further. If there was only one such visit that day, the affidavits cannot be reconciled. A motion for summary judgment is not a means of settling a dispute over the facts. Cf. Judson v. Peoples Bank & Trust Co. of Westfield, 17 N.J. 67, 110 A.2d 24 (1954).

Below and here, stress has been laid upon the lapse of time between the probate decree and the present action, namely,...