Thropp's Will, In re
| Decision Date | 15 March 1951 |
| Citation | 79 A.2d 509,12 N.J.Super. 444 |
| Parties | In re THROPP'S WILL. |
| Court | New Jersey County Court. New Jersey County Court — Probate Division |
John V. B. Wicoff and George Gildea, Trenton, for Helen W. thropp.
Robert A. Lederer, Toms River, for the guardian of Jane Ellen Thropp.
NEWMAN, J.C.C.
This is an application by the First National Bank of Toms River, New Jersey in the capacity of guardian of Jane Ellen Thropp, a minor, for the allowance of maintenance of a minor child and allowance to meet expenses in connection with a contest of the will of William R. Thropp, II, deceased, under and by virtue of R.S. 3:2--29, N.J.S.A.
It appears that the will of the above named decedent was admitted to probate in the Ocean County Surrogate's Court on the 19th day of July, 1950 and an appeal from such probate has been taken and is now pending in the Ocean County Court, Probate Division. The appeal from such probate has been taken by Dorothy S. Thropp, widow of the decedent and The First National Bank of Toms River, New Jersey, guardian of Jane Ellen Thropp, minor daughter of decedent.
The statute in question provides as follows:
'In all cases where any contest has arisen or shall arise in any court * * * touching the probate of any paper purporting to be the last will and testament of any person * * * the judge of the orphans' court * * * may, upon petition made for that purpose * * * by any of his children * * * or by the next friend of any child above-mentioned, if such child be under twenty-one years of age, make an order upon the person having the custody of the estate of such person for the payment, pending the contest over the probate of the will, out of the income of the estate of the decedent, of such allowance for the support and maintenance of such * * * child or children as the * * * judge * * * may deem just; and such further allowance out of the income, or if need be, out of the corpus, of such estate as may be necessary to meet the expenses incurred or to be incurred in conducting such contest concerning the probate of such will.'
The statute further provides that the widow shall not have the benefit of this statute unless she shall have been living with the decedent at the time of his death.
It is admitted, in this case, that the widow was not living with her husband at that time and she does not join in this application.
Testimony was taken on this application for the purpose of establishing facts to the satisfaction of the court that the child was in need of funds for her maintenance from her father's estate and further that she was in need of funds for the proper prosecution of the will contest.
I deem it the statute affords the court the right to order the use of the income and Corpus of the father's estate in cases where the Court is convinced there is a necessity on behalf of the minor child for such use. It therefore becomes incumbent upon the petitioner here to establish the following:
First--The petitioner must establish that he has reasonable grounds for contesting the will;
Second--That the infant would gain as a result of setting aside the contested will, and
Third--That the child is in need of funds for her support and maintenance and probably further in need of funds for the contesting of the will.
Mr. Justice Heher in the case of In re Phillips Will, 138 N.J.Eq. 96, 46 A.2d 796 (Prerog. 1946), affirmed 139 N.J.Eq. 557, 51 A.2d 431 (1946) speaking for the Court of Errors and Appeals concerning an application under this Statute, said: ...
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