McCormack v. Burns
| Decision Date | 20 September 1918 |
| Docket Number | No. 42/593.,42/593. |
| Citation | 105 A. 70,89 N.J.Eq. 274 |
| Parties | McCORMACK et al. v. BURNS. |
| Court | New Jersey Court of Chancery |
Bill by William McCormack and others against Bridget Burns, to set aside the probate of will of Hanorah McCormack, deceased, and to enjoin defendant from using the surrogate's decree admitting such will, and to direct defendant to account for property received. Bill of complaint dismissed.
John F. Gough, of Jersey City, for complainants.
Charles Young, of Jersey City, for defendant.
The bill in this cause prays that a decree may be made that a certain paper writing admitted to probate by the surrogate of Hudson county is not the last will and testament of Hanorah McCormack, deceased, and was contrived by the defendant in fraud of the decedent and the complainants, and that the letters of administration with the will annexed were obtained by the defendant in fraud of the complainants, and that the defendant be restrained and enjoined from setting up in any court or in any jurisdiction whatsoever, and from using in any manner, for any purpose, the order and decree of the surrogate admitting the paper writing to probate, and granting administration upon the estate of the decedent, and from using in any manner the letters of administration granted to her by the surrogate, and that she be directed to account to such administrator as may be appointed of the estate of the decedent for whatever personal property of the decedent may have come into her hands.
The conclusion that I have reached is that this bill must be dismissed. The proofs submitted satisfy me that the complainants could not prevail, even if this court had jurisdiction to try the questions at issue, as I am satisfied that there was no fraud in the procurement of the will, nor do I think that the will was improperly executed. But, as I am satisfied that this court has no jurisdiction to try cases involving fraud in the procurement of a will or irregularities in the execution of the same, the bill will be dismissed for that reason. The cases which will be cited make this so clear that I do not think there is any necessity for going into the matter at any very great length. " Where a will is admitted to probate by the surrogate the parties interested have 3 months in which to appeal to the orphans' court if they are residents of this state, and 6 months if nonresident. If they do not appeal within that time, there is no remedy so far as I can discover, as it has been held that the surrogate cannot, under any circumstances, reopen or vacate his decrees. If the will should be probated in the Prerogative Court, probate in solemn form may be allowed and the probate set aside on sufficient cause being shown. This may be done in the Prerogative Court, even though years may have elapsed since the will was admitted to probate in common form. But this is not true where the will is admitted to probate by the surrogate.
For over 100 years it has been the settled law of England and of this country that courts of equity have no jurisdiction in cases of fraud in the procurement of wills. The origin of the rule seems to have been that the Ecclesiastical Courts had full jurisdiction, and the courts of equity would not assume jurisdiction for that reason. Courts of equity have jurisdiction in all questions of fraud, unless there is a complete and adequate remedy at law, except in this...
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In re Kellner's Estate
...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 ......
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Gray v. Cholodenko
...of Chancery--by way of exception to this rule--refused such relief as to a decree granting probate of a will, McCormack v. Burns, 89 N.J.Eq. 274, 277, 105 A. 70 (Ch.1918); Warren, 33 Harv.L.Rev. 556, 568 (1920), Cf. 41 Harv.L.Rev. 309 (1928); Vincent v. Vincent, 70 N.J.Eq. 272, 62 A. 700 (C......
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In re Crociani's Estate
...validity of the statute of 1917 has never been directly adjudicated, the statute has been mentioned in the cases of McCormack v. Burns, 89 N. J. Eq. 274, 105 A. 70, 71, and In re Frank's Will, 93 N. J. Eq. 405, 114 A. 857. In the McCormack Case, application was made to the court of equity t......
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Pusillo v. Czajkowski
...procedure of appeal to the County Court by one dissatisfied with or aggrieved by a judgment of the surrogate. In McCormack v. Burns, 89 N.J.Eq. 274, 105 A. 70 (Ch.1918), the bill of complaint attacked the validity of a will on the ground that it was not the will of the testatrix and was pro......