Vincent v. Vincent

• Decision Date: 16 January 1906
• Citation: 70 N.J.E. 272,62 A. 700
• Parties: VINCENT v. VINCENT et al.
• Court: New Jersey Court of Chancery

62 A. 700

70 N.J.E. 272

VINCENT

v. VINCENT et al.

Court of Chancery of New Jersey.

Jan. 16, 1906.

Suit by Harry J. Vincent against Amelia Vincent and others. Heard on demurrer to bill. Sustained.

Jerome D. Gedney, for complainant. Howe & Davis, for demurrants.

EMERY, V. C. The bill demurred to discloses this case: Thomas Vincent died on February 18, 1904, seised and possessed of considerable real and personal estate, leaving a widow and, as heirs at law and next of kin, four sons, three daughters, and two infant children of a deceased son. After his death a paper writing, purporting to be his will, was offered for probate to the surrogate of Essex county. No caveat appears to have been filed, but on account of the appearance of the paper itself (its Informality, Interlineations, changes, and erasures, and its lack of an attestation clause), the surrogate declined to admit the writing to probate, and on March 2, 1904, issued citations to the widow and all of the next of kin to appear before the orphans' court on March 12. 1904, in the matter of the probate. The statute (orphans' court act [Rev. 1898, § 13; P. L. p. 718]) directs that "in case doubts arise on the face of the will, the surrogate shall not act in the premises, but issue citations to all persons concerned, to appear before the orphans' court of the county, which court shall hear and determine the matters in controversy." Complainant signed a paper authorizing by name a proctor of the court to acknowledge service of the citation on his behalf, and due service was acknowledged by the proctor on March 4, 1904, by indorsement in writing upon the citation. The authority to acknowledge service was filed in the surrogate's office. The paper offered as decedent's will was admitted to probate by the orphans' court on March 15, 1904, three days subsequent to the return day of the citation and letters testamentary were issued to the widow and two of the brothers of complainant, the executors named in the will. They have taken possession of the estate, filed an inventory (alleged in the bill to be below the value of the property), and are proceeding under the will to sell and dispose of the personal estate and the real estate not specially bequeathed.

The bill alleges that this paper authorizing the proctor to acknowledge service of the citation, was signed at the request of one Teed, and under false representations by him that it was a paper of a different character, and for an entirely different purpose, viz., an application to have the widow appointed guardian of one of the daughters, who was non compos mentis, and that if not signed by complainant the court would appoint a stranger as guardian; that complainant, being willing to do this, and being unacquainted with business or legal matters, signed the paper, supposing it was for this purpose, relying on Teed's representations, and without consultation or advice. Complainant himself never employed or retained the proctor. He alleges that by reason of these false representations, the proctor's acknowledgment of service was unauthorized, that he was never served with the citation, did not appear at the return thereof, and knew nothing of the proceedings for probate, and has been deprived of his day in court in reference to the probate. He prays that the probate may therefore be set aside as to him. The bill further alleges that Teed had been a bookkeeper employed by the deceased, and that at the time of procuring complainant's signature, he was in the employment of the sons of decedent, who had been connected with their father in the business, and were still continuing it, but beyond this does not disclose any connection between Teed and the executors, who are the widow and two sons, Charles and Edward, nor charge that they are in any way parties to Teed's misrepresentation, nor does it charge that the proctor had any knowledge or information of the misrepresentation. Neither does it allege that the paper was not the will of deceased, nor that on the proofs submitted the will should not have been submitted to probate. The whole case stated by the bill, and the relief asked, extends only to controlling the effect of the probate itself.

The probate of a will, so far as the personal estate is concerned, is a proceeding in rem, in the strict sense of that term, and within the exclusive jurisdiction of the orphans' court Quidort's Adm'r v. Pergeaux, 18 N. J. Eq. 472, 477 (Zabriskie, Ch.; 1867). For this reason, and the further reason that courts invested with jurisdiction for probate have generally power to check and revise proceedings for probate tainted with mistake, fraud, or illegality, a court of equity will not entertain jurisdiction to set aside a will or the probate thereof. Broderick's Will (1874; Bradley, J.) 21 Wall....