In Re Phillips' Will.

• Decision Date: 03 May 1946
• Citation: 46 A.2d 796
• Parties: In re PHILLIPS' WILL.
• Court: New Jersey Prerogative Court

46 A.2d 796

In re PHILLIPS' WILL.

Prerogative Court of New Jersey.

May 3, 1946.

Proceeding by Arthur Phillips, Jr., and others, as executors under the will of Arthur Phillips, deceased, for probate of the will, contested by deceased's widow. On contestant's petition for an order directing the administrator pendente lite of the estate to pay petitioner an allowance out of income thereof for her support and maintenance and a further allowance out of the income or corpus of the estate to pay expenses of the contest and a reasonable counsel fee.

Order denied.

Syllabus by the Court

.

1. The statute, R.S. 3:2-29, N.J.S.A., is one in derogation of the common law and must be strictly construed.

2. The term ‘income’, as used in the statute in its common everyday meaning, is that gain which proceeds from labor, business, property or capital of any kind.

3. Petition of widow for an order for support and maintenance pending contest over the probate of the will of deceased husband denied upon showing that the estate is not in receipt of income; and allowance out of corpus to meet expenses incurred or to be incurred in conducting such contest denied, where it appears that the litigation is unwarranted.

Benjamin M. Ratner, of Newark, and Milford Salny, of Morristown, for petitioner.

Bilder, Bilder & Kaufman, Samuel Kaufman, Hannoch & Lasser, and Herbert J. Hannoch, all of Newark, for proponents of will.

STEIN, Vice Ordinary.

Petitioner is the widow of Arthur Phillips, deceased, who died January 27, 1946. On February 26, 1946, Arthur Phillips, Jr., Milton Maybaum and Nathan Bilder, executors named in the will of Arthur Phillips, deceased, having offered his will dated September 9, 1943 for probate, the petitioner filed objections thereto.

Petitioner now seeks by her petition an order pending the contest over the probate of the will of her husband, directing the payment to her of an allowance out of income for her support and maintenance, and a further allowance out of income or corpus of the estate to meet expenses incurred and to be incurred in the conduct of her contest and a reasonable counsel fee under authority of R.S. 3:2-29, N.J.S.A.

The statute is one in derogation of the common law and must be strictly construed. The common law gave to this petitioner, as widow, no such relief. The term ‘income’, in its common everyday meaning, is, that gain which proceeds from labor, business, property or capital of any kind. According to the evidence, the only income which decedent had was $400 a week paid to him by the National Oil & Supply Company as salary for services. With his death, this income ceased. The records produced indicate no other income. Besides the residence in which the deceased lived with...