Pritchard v. Howell
| Decision Date | 18 January 1917 |
| Citation | 99 A. 845,87 N.J.Eq. 252 |
| Parties | AUGUSTA R. PRITCHARD, proponent and respondent, v. EMMA HOWELL et al., caveators and appellants |
| Court | New Jersey Prerogative Court |
On appeal from order of the Monmouth orphans court revoking a certificate transferring the questions involved on the probate of a will into the circuit court for trial.
Order affirmed.
Mr Thomas P. Fay, for the appellants.
Messrs John S. Applegate & Son, for the respondent.
WALKER, ORDINARY.
A paper-writing purporting to be the last will and testament of James Pritchard, deceased, was offered for probate before the surrogate of Monmouth county. A caveat was lodged against the probate by the decedent's heirs-at-law and next of kin. The parties were duly cited and warned to appear before the orphans court on the issue of will or no will. After the cause was transferred to the orphans court, the caveators, or some of them, petitioned that court to certify the questions involved in the controversy into the circuit court for trial before a jury pursuant to the statute. The certificate prayed for was granted.
Section 18 of the Orphans Court act (Comp. Stat. p. 3818) provides that the orphans court may, on application of the caveator, appellant or proponent, certify the questions involved in proceedings respecting the probate of a will into the circuit court for trial before a jury, and that upon filing such a certificate with the clerk of the circuit court, that court shall have jurisdiction to try the cause upon an issue to be framed. The certificate in question was made on March 30th, 1916, but, not being filed with the clerk of the circuit court, notice was given on April 8th, 1916, of a motion before the orphans court on April 13th, then instant, to revoke the certificate. On the day the motion was argued the certificate was filed with the clerk of the circuit court. The judge of the orphans court held that the circuit court did not have jurisdiction by virtue of the certificate on the day the notice of the motion to revoke it was served. He further held that he had jurisdiction to make the revocation, which was ordered, citing Brothers v Pickel, 31 N.J.Eq. 647, and Vincent v. Vincent, 70 N.J.Eq. 272, 62 A. 700. The reason which provoked the motion to revoke the certificate was that it was made without notice and that no opportunity was afforded the proponents to be heard.
In the case of Brothers v. Pickel, Chancellor Runyon sitting as ordinary, held that the section of the Orphans Court act providing for the certification of questions involved in a controversy over the probate of a will, was discretionary and not mandatory. And in Vincent v. Vincent, Vice-Chancellor Emery held that the orphans court is a superior court of general jurisdiction and has the same authority over its decrees as may be exercised by any court of general jurisdiction. These authorities, I think, sustain the asserted power of the judge of the orphans court in this case.
The orphans court is a court of general jurisdiction over the subjects within its cognizance and partakes of the powers of the chancery and prerogative jurisdictions. In re Hathorn's Will, 94 N.J.Eq. 371, 97 A. 262. In that case, I held that the orphans court had power to vacate its decrees in a probate case.
In Mellor v. Kaighn (Court of Errors and Appeals), 89 N.J.L. 543, 99 A. 207, the difference between the orphans courts as courts of general jurisdiction and the surrogate's courts as courts of special jurisdiction, was pointed out. And it was held that a surrogate's jurisdiction is purely statutory, and that where he exercises jurisdiction his power is exhausted and he cannot open or vacate his decree for any cause.
The decisions, and they are quite numerous, support the power of the orphans ...
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