In re McCabe's Estate

• Decision Date: 06 February 1939
• Docket Number: No. 210.,210.
• Parties: In re McCABE'S ESTATE.
• Court: New Jersey Supreme Court

4 A.2d 2

125 N.J.Eq. 278

In re McCABE'S ESTATE.

No. 210.

Court of Errors and Appeals of New Jersey.

Feb. 6, 1939.

Appeal from Prerogative Court.

Proceeding in the matter of the estate of Jane Ann McCabe, deceased, wherein Lissa L. McCabe Cross and another, two of the executrices of the last will and testament of Jane Ann McCabe, deceased, filed petition for removal of their coexecutrix, Laura J. French. The Orphans' Court made an order removing all of the parties from their office as executrices and ordered that letters of substitutionary administration upon the estate be granted to a third party. The petitioners appealed to the Prerogative Court and a copy of the petition of appeal was served upon Laura J. French's proctor. Laura J. French filed an answer to the petition and prayed that decree of Orphans' Court be affirmed. Subsequently, a motion was made by proctor for appellants to strike answer of Laura J. French on ground that the Prerogative Court was without jurisdiction to entertain the appearance, which motion was dismissed by the vice ordinary. From a decree of dismissal, ordering an affirmance of the order of the Essex County Orphans' Court, the petitioners appeal.

Affirmed in part and reversed in part.

Joseph C. Paul, of Newark, for appellants.

Henry J. Camby, of East Orange, for respondent.

RAFFERTY, Judge.

Lissa L. McCabe Cross and Ethel M. Atkinson, two of the executrices of the Last Will and Testament of Jane Ann McCabe, deceased, filed their petition in the Essex County Orphans' Court praying for the removal of their coexecutrix, Laura J. French. These ladies are sisters to each other and daughters of Jane Ann McCabe, the testatrix. Laura J. French answered, praying for the removal of her sisters as executrices. After extensive hearings on the matter, the learned Judge of the Orphans' Court made an order removing all of the parties from their office as such executrices and revoking the Letters Testamentary theretofore issued to them and ordered, further, that Letters of Substitutionary Administration upon the estate be granted to a third party.

Appeal being made to the Prerogative Court by Mrs. Cross and Mrs. Atkinson, a copy of the petition of appeal was served on Mrs. French's proctor, she having been joined as respondent. Mrs. French filed an answer to this petition in which she prayed that the decree of the Orphans' Court, in the respects appealed from, be affirmed. Thereafter a motion was made by proctor for appellants to strike the answer of Mrs. French on the ground that the Prerogative Court was without jurisdiction to entertain this appearance, which motion was dismissed by the Vice Ordinary. The appeal having been heard, a decree of dismissal was entered and the order of the Essex County Orphans' Court was affirmed. This decree provided also for the payment to Laura J. French of a counsel fee.

The appeal to this court is based mainly upon the points, (1) that there was insufficient testimony upon which to base a decree removing appellants from their office as executrices; (2) that there was no petition filed by Laura J. French in the original proceeding asking for the removal of appellants and that there was nothing before the court upon which to base any right to remove appellants; and further, that it was error to permit Laura J. French to file the answer to petition of appeal in the Prerogative Court, she, having been removed as coexecutrix by the Orphans' Court, was, therefore, without standing in the Prerogative Court, and (3) that it was error in the Prerogative Court to allow counsel fee.

As to the merits of the case, a reading of the testimony clearly evinces that the removal of these executrices from their office as such and the revocation of the Letters Testamentary theretofore issued to them was amply justified. It is unnecessary to detail the items in proof evidencing the lack of qualifications in these parties to continue in their trust. We quite agree with the learned Judge of the Orphans' Court, who, having heard the testimony and observed the witnesses and made extensive inquiry into the whole matter, remarked in his memorandum:

"The long and short of it is that, whether because the strain of this bitter protracted litigation has affected their judgment, or for some other reason, in any event it seems impossible for petitioners to pass fair judgment upon any matter connected with the conduct of the estate of their mother, and whether same affects their sister or third parties. All must suffer if their views do not accord with petitioners' desires. Obviously, such attitude and action is not only not consonant with the proper performance of their duties as such executrices, but when carried to the length here seen makes their conduct flagrant. Such being the situation, they too will be removed as executrices."

As to the contention that there was no petition filed by Laura J. French in the original proceedings asking for the removal of appellants, we observe that in the amended answer to the petition filed in the Orphans' Court, Mrs. French, as respondent, alleges in the twentieth paragraph thereof, "* * * and that in order to preserve the same and to protect the estate, the petitioners should be removed as executrices or, in lieu, etc.", and further,...