Mellor v. Kaighn

• Decision Date: 20 November 1916
• Citation: 89 N.J.Law 543,99 A. 207
• Parties: MELLOR et al. v. KAIGHN.
• Court: New Jersey Supreme Court

99 A. 207

89 N.J.Law 543

MELLOR et al.

v. KAIGHN.

Court of Errors and Appeals of New Jersey.

Nov. 20, 1916.

(Syllabus by the Court.)

Appeal from Supreme Court.

Action by Arthur B. Mellor and others, executors, against Joseph Kaighn. From a judgment (96 Atl. 1015) for plaintiffs, defendant appeals. Affirmed.

Stackhouse & Kramer, of Camden, for appellant. Wilson & Carr, of Camden, for appellees.

WALKER, Ch. On May 26, 1914, William B. Mellor of Camden county executed a paper purporting to be bis last will and testament. On October 24, 1914, he died, and on November 6, 1914, the paper was duly admitted to probate as his last will, and letters testamentary were issued thereon to Edgar Mellor and Arthur B. Mellor, the executors named in it. After the time limited for an appeal, and on December 9, 1915, a petition was filed with the surrogate of Camden county by Joseph Kaighn, who alleged that at the time of the making of the will so admitted to probate the testator was not of sound and disposing mind and memory, and that the subscribing witnesses well knew that fact, and that at the time of the execution of that will the testator was insane and unable to make any intelligent disposition of his property; that the will was prepared by one of the subscribing witnesses, who, in conjunction with the executors, procured its execution, although all of them knew that the testator was insane and without testamentary capacity. The petitioner further averred that on March 16, 1910, William B. Mellor made, published, and declared a paper writing as and for his last will and testament, in which he appointed the petitioner executor; that the existence of that will first came to petitioner's knowledge on November 1, 1915; that at the time of the making of that will the testator was of sound and disposing mind and memory, and had full testamentary capacity; that the will dated May 26, 1914, is not the last will and testament of William B. Mellor, but that the will of March 16, 1910, is the true will of the testator. The petitioner prayed that the will of 1910 be admitted to probate and the petitioner granted letters testamentary thereon, and that" the will of 1914 be revoked and set aside.

Upon the filing of this petition the surrogate of Camden county made an order, requiring the executors named in it to show cause before him, the surrogate, why its prayer should not be granted. Thereupon Arthur B. Mellor and Edgar Mellor, the executors of the will which had been admitted to probate, entered a special appearance with the surrogate for the sole and only purpose of objecting to his jurisdiction to entertain the petition or make any order thereon, other than to dismiss it for lack of jurisdiction. They also filed an answer, reciting the special appearance and denying the jurisdiction of the surrogate to grant the relief prayed for. It appears that leave of court must be obtained to enter a special appearance (Allman v. United Brotherhood of Carpenters, 79 N. J. Eq. 150, 154, 81 Atl. 116, affirmed 79 N. J. Eq. 641, 83 Atl. 1118, and such was not obtained from the surrogate; but no point was made of this, nor could it very well have been, for the surrogate lacked jurisdiction in this case, and any answer challenging it would have properly raised the question.

Counsel for the petitioner gave notice of a motion before tie surrogate to strike out the special appearance and answer, and, after hearing, the surrogate made such an order. Thereupon certiorari out of the Supreme Court was awarded by Mr. Justice Garrison to review the action of the surrogate in entertaining jurisdiction upon the petition. It was duly served, and came on to be heard before the justice who granted it, who decided that the orders brought up by the writ should be set aside as steps in the exercise of a jurisdiction by the surrogate that does not exist.

Certiorari was the proper remedy. The proceedings of an inferior tribunal are reviewable upon appeal when the court below has jurisdiction, and by certiorari when it exceeds its jurisdiction. Diament v. Lore, 31 N. J. Law, 220; Richardson v. Smith, 74 N. J. Law, 111, 65 Atl. 162. Certiorari is a prerogative writ by which the Supreme Court exercises jurisdiction to supervise the proceedings of inferior tribunals and governmental establishments. Specht v. Central Passenger Ry. Co., 68 Atl. 785, affirmed 76 N. J. Law, 631, 72 Atl. 356; Orange v. Hussey, 70 N. J. Law, 244, 57 Atl. 1086; In, re Prudential Ins. Co., 82 N. J. Eq. 335, 88 Atl. 970.

The surrogate of a county in probating wills acts judicially and holds a court. Steele v. Queen, 67 N. J. Law, 99, 50 Atl. 668. It is, however, not a court of general jurisdiction, but one of special jurisdiction. This, in effect, was asserted by Mr. Justice Fort in writing the opinion of the Supreme Court in Steele v. Queen, where he said (67 N. J. Law, at page 100, 50 Atl. at page 669) that: "Griffith puts 'the surrogate's court' under 'courts of peculiar jurisdiction.'"

In his opinion in Hess v. Cole, 23 N. J. Law, 116, at page 121, Chief Justice Green observed that the jurisdiction of the orphans' court, though limited, is not special; that it does not exercise a mere delegated authority for special purposes; that it is a regularly constituted tribunal of Justice, with broad and comprehensive powers, operating upon great and varied interests, and regulated by well-settled principles. This very language would indicate that the surrogate's court is not only one of limited, but of special, jurisdiction. The true distinction between courts is such as possess general, and such as have only a special, jurisdiction for a limited purpose. Den v. Hammel, 18 N. J. Law, 73.

In colonial times, and later, the surrogates were appointed by the ordinary as his deputies. Cleven, & Keasb, Cts. 128, 129; Ex parte Coursen, 4 N. J. Eq. 408; In re Thompson, 86 N. J. Eq. 221, 261, 96 Atl. 102. In article 6, § 4, par. 2, of the Constitution of 1844, the surrogate was made a constitutional officer, and the method of his selection was provided for. This changed his former status of deputy to the ordinary, and made him an independent officer, whose duties are prescribed by the Legislature. His jurisdiction is purely statutory, and extends to the probate of wills and grant of letters of administration and guardianship and to certain other matter mentioned in the statute. His powers and duties are now devolved and provided for in the present Orphans' Court Act (Revision of 1898) Comp. Stat., p. 3813. Section 13 of that act provides:

"The surrogates of the several counties of this state shall take depositions to wills and admit the same to probate, and grant letters testamentary thereon; but in case doubts arise on the face of the will, or a caveat is put in against proving a will, or a dispute arises respecting the existence of a will, the surrogate shall not act in the...