In re Martin

• Decision Date: 07 July 1916
• Docket Number: No. 41/531.,41/531.
• Citation: 98 A. 510
• Parties: In re MARTIN.
• Court: New Jersey Court of Chancery

98 A. 510

In re MARTIN.

No. 41/531.

Court of Chancery of New Jersey.

July 7, 1916.

(Syllabus by the Court.)

On petition for the purpose of obtaining a release or relinquishment of dower of Cornelia G. Martin in the estate of Luther Martin, deceased, and for reference. Ordered that order to show cause be personally served on dowress.

Alfred S. March, of New Brunswick, and I. Benjamin Glueckfield, of Newark, for petitioners.

WALKER, C. The petitioners have filed a petition for the purpose of obtaining a release or relinquishment of the right of dower of a dowress, alleged to be incapacitated by mental infirmity or disease from executing a valid release or relinquishment of the same, pursuant to section 28 of the statute, entitled "An act relative to dower" (Comp. Stat p. 2052, amended by P. L. 1915, p. 396, but not so as to affect this application), and move for a reference to a master under the second section of that statute, no notice to the dowress of the intended application or of having a guardian ad litem appointed for her having been given; and the question arises whether the motion should be granted without notice to the dowress, and whether the relief ultimately sought should be granted without her being made a party to the proceedings and being represented by guardian before the court.

It is fundamental that in every proceeding of a judicial nature it is essential that the person whose rights are to be affected should be a party to the proceeding and have an opportunity of making a defense. This rule was declared with great emphasis and comprehensiveness by Chief Justice Green in Hess v. Cole, 23 N. J. Law, 116, at page 124. There a decree of the orphans' court, setting off dower, was declared void, upon the ground that a party whose interests were affected by it had not been served with notice of the intended application for the appointment of commissioners, as required by the statute in that behalf. And there the Chief Justice was not content to rest the decision of the Supreme Court upon the failure to give notice to the party to be affected by the intended application, as required by the express provisions of the statute, but went further, and rested the decision upon the broad ground of the clearest principles of justice, irrespective of the statutory requirements, and irrespective of a summary way of proceeding, or otherwise requiring the giving of such notice, saying at page 124:

"Every common-law record shows upon its face that the defendant was either in custody, or was summoned or attached to answer to the action. And, however inconvenient may have been the strictness with which the principle was applied, and the extent to which it was enforced in ancient common-law proceedings, the principle itself is by no means peculiar to the common law. It pervades in fact every code of law and every well-regulated system for the administration of justice. The time and the manner of the notice, whether it shall be actual or constructive, whether personal or otherwise, are subjects of legislative control, founded upon considerations of policy or expediency. There are modes prescribed by statutes arising from the necessity of the case, in which judgments may be recovered without notice to the defendant. But in the absence of statutory provisions it is an inflexible rule of law, as well as the clear dictate of justice, that no man shall be deprived of his rights, either of person or property, without an opportunity of being heard. It is not enough that the court have jurisdiction of the subject-matter; they must also have jurisdiction of the person. In every proceeding of a judicial nature it is essential that the person whose rights are to be affected should be a party to the proceeding, and have an opportunity of making defense."

And, further continuing as to the effect of the want of such opportunity, the Chief Justice said, at page 125:

"As it appears expressly by the plea that no notice was given to the plaintiff, William Hess, of the application to the orphans' court, as it does not appear that he became in any way a party to those proceedings, the decree of the orphans' court, so far at least as it operates upon his rights, is null and void."

Now, what are the rights of the dowress to be affected under the statute invoked? The estate or interest of a widow in lands in which she is entitled to dower is the right to have one-third set off to her by metes and bounds, and to enjoy the same for her natural life. It would be unjust to her to take away that right when the clear yearly income is greater than the yearly interest on the substituted bond or fund, for the sake of promoting a sale in the interests of the owner of such lands. It would be equivalent to giving the property of one person to another. Haulenbeck v. Cronkright, 23 N. J. Eq. 407, at page 410. And although the statute mentions only the interests of the owners, nevertheless it must be construed, I think, as having regard to the interest of the person entitled to the right of dower.

The first section of this statute makes it lawful for the chancellor to direct a release or relinquishment of her dower to be made by a master, whose deed, executed in behalf of the dowress mentally incapacitated, shall release and bar all the dower, or estate in dower, to which such person is entitled in lands, whenever it shall appear to the chancellor's satisfaction that "the interests of the owners of such lands and premises require and would be promoted by a sale of the same."

And the second section directs that upon a petition filed for that purpose, the chancellor may, in a summary way, proceed to inquire into the merits of the application toy reference to a master or otherwise, and in case the release is ordered by him in conformity with the prayer of the petition, a bond shall be given to the chancellor or guardian of such person, in such penalty and with such surety as he may direct, to secure to the guardian of such person so entitled to dower the enjoyment during her life of a fund equal to one-third of the whole proceeds of sale of the lands and premises, or, in lieu of such bond, If it shall appear satisfactory to the chancellor, the sum of one-third of the whole proceeds of sale shall be invested under his direction, and the interest thereof shall go to the widow during her life, or a sum in gross may be accepted.

From this examination of the statute in question it clearly appears that the rights of the dowress will be affected if the prayer of the petition be granted by barring the estate of dower given her by the general act relative to dower (Comp. Stat. p. 2043, § 1), and substituting something else in lieu thereof, and that, therefore, it is essential that she should be a party to the proceeding now before the court, and have an opportunity of making defense within the rule declared in Hess v. Cole, and that notice to her should be given of the intended application, although no such notice is required by the statute under which the petition is filed, and that, if she toe shown to be incapacitated by mental infirmity, a guardian ad litem should be appointed for her by whom she may appear and answer and defend. A decree cannot be made as to any person who is not a party to the suit. Armstrong v. Armstrong, 19 N. J. Eq. 357; Collins v. Kiederling, 97 Atl. 948, opinion by the chancellor not yet officially reported. See, also, Cooper v. Wallace, 55 N. J. Eq. 192, 196, 36 Atl. 575.

It seems to be thought that this summary proceeding, looking to an adjudication with reference to the rights and interests of incapacitated parties, may be had without notice to them. This cannot lawfully be done. The presence of a guardian before the court to represent an incapacitated party is essential, and the guardian can only be appointed when the party is before the court How the party is brought in will be treated of presently.

A reported case under the statute referred to is that of In re Booskirk, 24 N. J. Law Jr., 591. Upon the filing of the petition in that case Chancellor McGill made an order appointing the clerk in chancery guardian ad litem for Mrs. Booskirk, a lunatic, who had an inchoate right of dower in the lands of her husband, which he desired to sell, and in the same order referred the matter to Special Master Martin P. Grey, afterwards one of the vice chancellors. The guardian appeared by counsel before the master and made certain contentions, and the master reported in favor of granting the prayer of the petition, and a decree for the conveyance of the wife's inchoate dower was consequently made. An examination of the files of that case shows that the guardian was appointed for the wife upon the case of lunacy made against her by the ex parte proofs annexed to the petition, and without any notice of the proceeding to her. I do not think the learned Chancellor went far enough, and I am unwilling to hold that such a proceeding may be had without notice to the person entitled to the right of dower, inchoate or consummate; and this for reasons presently to be stated.

In Van Horn v. Hann, 39 N. J. Law, 207. Mr. Justice Reed, writing the opinion of the Supreme Court, says at page 213:

"The common-law rule is that a lunatic defends in the same manner as ordinary persons. Process is served upon him personally; then, if an infant, he appears by guardian, and if of full age, by attorney. This rule seems as old as Beverly's Case, 4 Coke, 124b. See Tidd's Prac. vol. 1, p. 93,...