In re Braunstein's Estate

• Decision Date: 26 May 1932
• Citation: 160 A. 650
• Parties: In re BRAUNSTEIN'S ESTATE.
• Court: New Jersey Supreme Court

160 A. 650

In re BRAUNSTEIN'S ESTATE.

Prerogative Court of New Jersey.

May 26, 1932.

Syllabus by the Court.+++

1. An order allowing counsel fees to a proctor of an administrator pendente lite is not an order "respecting the probate of a will." Appeal from such order may be demanded within three months from the making thereof.

2. A motion to dismiss an appeal made after thirty days, but within three months, upon the ground that it was not within the time limited by statute, refused.

Appeal from Orphans' Court, Atlantic County.

Proceedings for the probate of the last will and testament of Samuel M. Braunstein, deceased, in which caveats were filed. From an order allowing counsel fees to attorneys for administrators pendente lite, the Guarantee Trust Company, one of the administrators, and another, appeal. On motion to dismiss the appeal.

Motion dismissed.

See, also, 105 N. J. Eq. 682, 149 A. 349.

Bourgeois & Coulomb and Nathaniel S. Hyman, all of Atlantic City, for appellant Nathaniel S. Hyman and others.

Cole & Cole, of Atlantic City, for petitioners Guarantee Trust Co. and Harry Braunstein.

Cole & Cole and Cassman & Gottlieb, all of Atlantic City, for petitioners Guarantee Trust Co. and Emerson L. Richards.

Joseph B. Perskie, of Atlantic City, and Mr. Robert H. McCarter, of Newark, for Bertha Hastings Braunstein.

Thompson & Hanstein, of Atlantic City, for Jewish Seaside Home and Levy Memorial Hospital.

Louis E. Stern and Emerson L. Richards, both of Atlantic City, for guardian Rose Richman.

INGERSOLL, Vice Ordinary.

In December, 1928, an application was made for the probate of a paper purporting to be the last will and testament of one Samuel M. Braunstein. Caveats having been filed, the application was continued. Upon the same day the Guarantee Trust Company of Atlantic City and Emerson L. Richards were appointed administrators pendente lite of the said estate. Litigation has since continued, and said probate, as yet, has neither been admitted or denied. The administrators pendente lite are still in the exercise of their duties.

Upon the 24th day of February, 1932, an order was entered in the orphans' court of Atlantic county in the following words:

"On application of Cassman & Gottlieb, Proctors for Guarantee Trust Company of Atlantic City and Emerson L. Richards, administrators pendente lite;

"It is, on this 24th day of February, 1932, ordered that said Proctors be allowed at this time the sum of $3,000.00 on account of services, and that the same be paid by said administrators pendente lite."

Upon the 28th day of March, 1932, Messrs. Cole and Cole, as proctors for the Guarantee Trust Company, one of the administrators pendente lite, and Harry Braunstein, gave notice as follows:

"To Cassman & Gottlieb, Esqs. Proctors for Emerson L. Richards, one of the Administrators Pendente Lite:

"Take notice that the Guarantee Trust Company one of the Administrators Pendente Lite of the Estate of Samuel M. Braunstein, deceased, and Harry Braunstein, hereby appeal to the Prerogative Court from the whole of the order of February 24, 1932, which allows proctors' fee to Cassman & Gottlieb, and imposes upon the estate the burden thereof, upon the ground that the court was without power to make any allowance, and that the allowance is excessive"

—and upon the same day entered its petition of appeal, as follows:

"To the Ordinary of the State of New Jersey.

"The petition of Guarantee Trust Company, one of the Administrators Pendente Lite of the Estate of Samuel M. Braunstein, deceased, and Harry Braunstein, respectfully show that:

"1. On February 24, 1932, an order was entered in the above entitled cause in the Orphans' Court of the County of Atlantic, and petitioners hereby appeal from the whole thereof which allows proctors' fee to Cassman & Gottlieb, and imposes upon the estate the burden thereof, upon the ground that the court was without power to make any allowance, and that the allowance is excessive.

"2. Your petitioners complain and allege that the whole of said order is erroneous, improper and illegal, and that your petitioners are aggrieved thereby."

This motion is for an order dismissing the said appeal on the ground that the appeal is not taken within the time limited for the taking of appeals from the order complained of. The statute is:

"Any person aggrieved by order or decree of the orphans' court, of whatever nature, may appeal from the same to the prerogative court; provided, that the appeal, if from an order or decree of the court respecting the probate of a will or right of administration or the fairness of an Inventory, shall be demanded within thirty days after such order or decree, and if from any other order or decree, the same shall be demanded within three months from the making of such order or decree, unless otherwise specially provided." Compiled Statutes of New Jersey 1910, vol. 3, p. 3889, § 204 (P. L. 1898, p. 793).

In the matter of the Estate of Rynear H. Williams, 94 N. J. Eq. 377, 120 A. 20, 21, which was an appeal to this court from that part of an order allowing counsel fees and disbursements to the caveatrix, made after an order for probate had been made, the Chancellor, as Ordinary, said:

"If this matter came to me as an original proposition, I might...