In re Alexander

• Decision Date: 20 November 1911
• Citation: 79 N.J.E. 226,81 A. 732
• Parties: In re ALEXANDER et al.
• Court: New Jersey Supreme Court

81 A. 732

79 N.J.E. 226

In re ALEXANDER et al.

Court of Errors and Appeals of New Jersey.

Nov. 20, 1911.

Appeal from Prerogative Court.

Petition by the parents of Jeremiah N. Alexander, Jr., and another, infants, to direct their guardian to pay for the education and maintenance of the infants the income produced from funds held by the guardian. From an order of the Prerogative Court affirming an order of the Orphans' Court denying the petition, the petitioners appeal. Affirmed.

Joshua E. Borton, for appellants.

PER CURIAM. The parents of Jeremiah N. Alexander, Jr., and Mary B. Alexander, infants, residents of the county of Camden, filed their petition in the orphans' court of that county praying that the guardian of their two children might be directed to pay to them, for the education and maintenance of their children, the income produced from funds held by the guardian in trust for the children. Upon the hearing of the application the prayer of the petition was denied. Thereupon the parents appealed to the Prerogative Court, and that court affirmed the order of the orphans' court. Appeal was thereupon taken to this court.

For the reasons set out in the opinion of Joline, J., filed in the orphans' court, we conclude that the order of the Prerogative Court, affirming that made by the orphans' court, should, in its turn, be affirmed. The opinion of the orphans' court, which is hereto annexed, is adopted by us as expressing the view which we entertain:

"Joline, J. The petition in this case sets out that Jeremiah N. Alexander and Anna B. Alexander are the father and mother of Jeremiah N. Alexander, Jr., an infant aged 16 years, and Mary B. Alexander, an infant aged 13 years; that the mother is possessed of certain property worth about $6,000, upon which there is a mortgage of $500; that she has no other outside funds or income and business or means of making any money; and that the father has an annual salary of $1,200.

"It further sets out that upon the death of a relative their son, named above, received a legacy of $1,000, and their daughter received a legacy of $4,000; that on the 14th day of January, 1910, letters of guardianship were granted by the surrogate of the county of Camden to the Security Trust Company of Camden; that on the 26th day of January, 1910, said company received the money due said infants and on the said lastnamed day invested the same in mortgages.

"It further sets out that the said Jeremiah N. Alexander, Jr., is attending the Penn Charter School in Philadelphia; that the said Mary B. Alexander is attending the public school in Haddonfield; that she has special taste and aptitude for music; that their parents are anxious to give her a musical education, and anxious to educate as best they can their son; that they are unable, financially, to give said children the education they think and believe they should have, and believe it would be for the best interest of said infants to have the income of said moneys used during their minority for the purpose of properly educating and properly clothing them.

"The prayer of the petitioners is that the Security Trust Company pay the income from said moneys to them, said parents, for the purposes aforesaid.

"Upon the hearing it was developed that the son lived in Haddonfield, N. J.; that he was being sent to the Drexel Institute, Philadelphia, at a cost of $100 a year, besides the cost of the trip from Haddonfield to Philadelphia; and that the mortgages drew 5 per cent. Interest. In all else the material allegations of the petition were fully sustained.

"From the time of its creation it has been held that the orphans' court was the creature of statute, and that it cannot assume jurisdiction of any matter unless it is given by statute. In the case of Gray v. Fox, 1 N. J. Eq. 259, 272, 22 Am. Dec. 508, it was held that 'the decree of the orphans' court on a matter over which it has jurisdiction, if fairly obtained, is certainly not to be questioned in a collateral way, even in this court.' (Chancery.) 'But that court is one of limited power and jurisdiction; if it transcends its jurisdiction its acts will pass for nothing.' Sherman v. Lanier, 39 N. J. Eq. 249-258. In Dunham v. Marsh, 52 N. J. Eq. 256-261, 30 Atl. 473, it was held that, once having obtained jurisdiction, it follows 'as an incident in the exercise of that power that it has power to solve any...