In re McConnell's Estate

• Decision Date: 08 March 1930
• Citation: 149 A. 352
• Parties: In re McCONNELL'S ESTATE.
• Court: New Jersey Supreme Court

149 A. 352

In re McCONNELL'S ESTATE.

Prerogative Court of New Jersey.

March 8, 1930.

Syllabus by the Court.

Appeal from Orphans' Court, Hudson County.

Proceeding by the surviving executor and trustee of Arthur McConnell, deceased, to establish a resulting trust, opposed by Gertrude McConnell, widow of James McConnell, deceased. From a decree of the Orphans' Court, Gertrude McConnell appeals.

Reversed.

John Milton, of Jersey City, for appellant.

Adolf L. Engelke, of Jersey City, for respondent.

BENTLEY, Vice Ordinary.

One Arthur McConnell died leaving a last will and testament which has been admitted to probate, wherein and whereby he bequeathed and devised to his widow, the respondent, all of his property. He appointed the respondent, and his son, James executors and trustees in said will. Thereafter, James died and by his will bequeathed and devised to his widow, the appellant, all his property. In the will of Arthur, he directed the payment of all his 'just debts "and funeral expenses" and authorized a monument for his grave, to cost not more than $1,500. Immediately after the death of Arthur, James and his sister purchased a burial plot in the cemetery in which Arthur's body was interred. This plot is capable of being utilized for sixteen graves. The evidence of the ownership of the plot was taken in the name of James individually. The appellant maintains that it was the property of her late husband and, therefore, under his will is now vested in her; while the respondent maintains that it was purchased by James out of the money in the hands of James in his fiduciary capacity, and that the plot is one of the items of the estate of Arthur.

As a result of a proceeding initiated in the orphans' court by the respondent, a decree was entered in that court on December 14, 1927, whereby the plot was declared to be a portion of the estate of Arthur, and not to have belonged to James individually. It is from that decree that this appeal is taken.

The petition filed in the orphans' court by the respondent was under an act entitled "A Supplement to an act entitled 'An act respecting the Orphans' Court and relating to the powers and duties of the ordinary and the Orphans' Court and surrogates,'" P. L. 1920, p. 475. The act declares it shall be lawful for any executor, administrator, or trustee, to petition the orphans' court for its advice and direction "in regard to any matter or thing in connection with the administration of his trust." The remainder of the statute clothes the court with power to "make such order or decree in the premises as it shall deem advantageous to the persons in interest," and to regulate the conduct of any business in which petitioner's decedent's estate may be invested. I am unable to find anything in this act, which will support the decree of the orphans' court The Legislature used the broad language quoted above, in...