In re Kellner's Estate

• Decision Date: 27 December 1932
• Parties: In re KELLNER'S ESTATE.
• Court: New Jersey Supreme Court

165 A. 585

In re KELLNER'S ESTATE.

Surrogate's Court of New Jersey. Essex County.

Dec. 27, 1932.

Const. 1844, art. 6, authorizes the Legislature to establish, alter, or abolish inferior courts of the state, and this includes the authority to enlarge or diminish the powers of any such inferior court.

Comp. St. Supp. § 146—208, authorizing surrogates to open decrees made in their court or to grant a new trial for fraud, newly discovered evidence, clerical errors, or other sufficient cause, does not authorize the surrogates to settle a dispute respecting the existence of a will.

In the matter of the estate of William H. Kellner, deceased. On petition to open and vacate decree on probate.

Decision in accordance with opinion.

Nathan H. Berger, of Newark, for executors under will.

Braelow & Tepper, of Newark, for petitioner Jane Kellner.

WHINERY, Surrogate.

William H. Kellner, died on July 24, 1930. His will, dated June 1, 1928, and two codicils, each dated June 22, 1929, were probated by the surrogate of Essex county on September 10, 1930, following the usual informal probate practice in cases not referred to the Orphans' Court by statute. At that time, Jane Kellner, a granddaughter of the decedent, was an infant. She became of age on March 26, 1932. On August 13, 1932, she filed a petition with the surrogate praying that the decree on probate, dated September 10, 1930, be set aside. An order to show cause based on this petition was signed by the surrogate. On its return day, the proctor for the executors, under the will admitted to probate, questioned the jurisdiction of the surrogate in the premises. By agreement of all parties to the proceedings, it was stipulated that this question of jurisdiction should first be settled before any testimony or evidence might be received on the rule to show cause.

In 1916, the Court of Errors and Appeals of New Jersey, in an opinion by Chancellor Walker in the case of Mellor v. Kaighn, 89 N. J. Law, 543, 99 A. 207, held that the jurisdiction of the surrogate ended upon the granting of a decree for probate of a will, and that he had no authority to open or vacate or change that decree. In 1917, the Legislature passed the following act (P. L. 1917, p. 293, c. 133 [Comp. St. Supp. § 146— 208]):

"A Supplement to 'An act respecting the Orphans' Court, and relating to the powers and duties of the ordinary, and the Orphans' Court and surrogates' (Revision, one thousand eight hundred and ninety-eight).

"1. The surrogates of the several counties of this State are hereby given the power and authority to open, vacate, modify or set aside or to enter as of a former time, a decree or order made in their court; or to grant a new trial or a new hearing for fraud, newly discovered evidence, clerical error, or other sufficient cause. The powers and authority conferred by this act must be exercised only in a like case and in the same manner as a court of record and of general jurisdiction exercises the same powers.

"2. This act shall take effect immediately."

The petition to vacate was filed, and the rule to show cause was granted pursuant to the authority given in the above legislative enactment.

Since the 1917 enactment there have only been two decisions of the higher courts in which it is mentioned. In McCormack v. Burns, 89 N. J. Eq. 274, 105 A. 70 (1918), the bill in equity prayed that a decree of a surrogate admitting to probate an alleged will might be set aside on the ground that the document was not, in fact, the last will of decedent, but was contrived by the defendant in fraud of the decedent and the complainants. Vice Chancellor Lewis dismissed the bill in equity, holding that a Court of Chancery has no jurisdiction to try a case involving fraud in the procurement of a will. In the course of his opinion (pages 276, 277 of 89 N. J. Eq., 105 A. 70, 71), he refers specifically to the act of 1917, and then says:

"It may be that under this act the complainants, if they succeed in establishing fraud in the procurement of this will, might find their remedy; but I am not called upon to pass on the question of whether, in this case, they can take advantage of that act, or whether it would be constitutional to allow them to do so."

Subsequently, in 1921, Vice Ordinary Learning decided the case of In re Frank's Will, 93 N. J. Eq. 405, 114 A. 857. Here the surrogate of Camden county had, on November 4, 1918, admitted to probate the will of Frank and issued letters of administration c. t. a. to Frank's mother, on the representation that the decedent died a resident of Camden county. His widow, Esther, on November 26, 1918, petitioned the said surrogate to revoke the decree of probate on the ground that the decedent was actually a resident of Pennsylvania and that the representation by his mother to the contrary was false. An order was made by the surrogate directing all interested persons to appear for a hearing on the petition. A motion to dismiss the petition was denied by the surrogate, and, after a hearing, he signed an order revoking and setting aside the original decree of probate. An appeal was taken from this order to the Orphans' Court, where it was affirmed, and the appeal was then carried to the Prerogative Court. Vice Ordinary Learning says:

"The single question which has been presented to this court for consideration herein is whether an appeal could be taken to the orphans' court from the order of the surrogate revoking the order of probate and the letters issued by him thereon. The orphans' court held, and respondent in this appeal contends, that any appeal from that order should be to the Prerogative Court. Prior to the act of March 26, 1917 (P. L. 1917, p. 293), the surrogate could not entertain a petition to vacate an order of probate which had been made by him. Mellor v. Kaighn, SO N. J. Law, 543, 99 A. 207. It is here conceded that that act conferred that power."

In the above case, the vice ordinary held that an appeal from such an order made by the surrogate should be made directly to the Prerogative Court.

In addition to the above cases, this statute was involved in cases before the Surrogate's Court, in which opinions were filed. In the case of In re Hunter, 40 N. J. L. J. 227, the petition alleged that letters of administration had been issued to an administrator who falsely represented to the surrogate that petitioner had renounced her right to such administration and the petition prayed for a revocation of the decree by which such letters of administration had been issued. Surrogate Stickel of Essex county, in his opinion, said:

"The act above quoted is almost an exact copy of the New York law on this subject and was evidently designed to give to the Surrogates the power which the Court of Errors and Appeals, in Mellor v. Kaighn [89 N. J. Law, 543, 99 A. 207] had found the Surrogates did not till then possess, and to provide an inexpensive and summary method of revie*w where a decree of the Surrogate had been entered by mistake or secured by fraud. That this was the purpose of the act, is shown by the statement attached to Assembly Bill No. 51, the bill which, upon being approved by the legislature and Governor, became the act above quoted."

In the case of In re Bradford Estate (1919) 43 N. J. L. J. 14, the, surrogate had issued letters of administration on July 20, 1917, on the estate of Bradford who had died on March 27, 1916. On August 5, 1919, a petition was filed with the surrogate, praying a revocation of the letters of administration on the ground that administration had been granted upon a false representation as to the domicile of the decedent. Surrogate Isherwood of Essex county said:

"A consideration of the eases above cited [referring to the New York cases], is convincing that, for the purposes enumerated therein, the Act of 1917 confers upon the Surrogate's Court all of the powers of a Court of general jurisdiction; and it is too well settled to require the citation of authorities that a Court of general jurisdiction may revoke its own decree, made in a case where it was without jurisdiction over the subject matter of the proceedings before it. Githens v. Goodwin, 32 N. J. Eq. 286; Trimmer v. Adams, 18 N. J. Eq. 505; Be Isaac Lawrence, 7 N. J. Eq. 215. * * *

"From what has gone before the conclusion is irresistible that the act of 1917 confers upon the Surrogate all of the powers of a Court of general jurisdiction for the purposes enumerated in that statute. * * *"

In 1930, the present surrogate of Essex county, decided in the case of In re Catherine Crociana, that administration granted to one who falsely alleged himself to be the husband of the decedent should be set aside upon petition of a brother of the decedent. The surrogate there acted under the authority of the act of 1917, which he held was constitutional.

The proctor for the executors insists that the statute of 1917 is unconstitutional. In the early history of New Jersey, the surrogate was a deputy of the ordinary and exercised general probate jurisdiction. In 1784 the Legislature passed an act providing for one surrogate or deputy for each county of the state and also established a new county court, called the Orphans' Court, which, among other powers, was vested with certain of the powers previously exercised by the surrogate, such as hearing and deciding disputes about the validity of wills and rights of administration. In re Coursen's Will, 4 N. J. Eq. 410, 414. At that time, the statute deprived the surrogate of some of his jurisdiction. There was no reference to surrogates in the first Constitution of our state, adopted in 1776, although the Governor was therein declared to be "Ordinary and Surrogate General." Article 8. The Constitution of 1844, however, specifically made the surrogates of counties constitutional officers (Const. art. 7, § 2, par. 6) but it did not specify the duties or the powers of the surrogate. It did change his former status of deputy...