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    John Crawford et al., executors, &c., v. Carrie L. Lees et al.
    [Submitted December 28th, 1914.
    Determined January 27th, 1915.]
    1. Where the probate of a will is set aside, an heir, as such, is not entitled to an accounting for a share of the personal property of the deceased, which has come to the hands of others, as such accounting must be in behalf of an administrator.
    2. A surrogate, in probating a will, holds a court and exercises judicial functions, and his decree is not subject to collateral attack, except for fraud or want of jurisdiction.
    3. In the absence of fraud of the parties, a judgment of a court of general jurisdiction cannot be collaterally impeached, if the court had jurisdiction of the subject-matter and the parties, and “jurisdiction” in that sense is the power to hear and determine a cause.
    4. The erroneous determination of a court of general jurisdiction of facts, on which its jurisdiction depends, cannot be collaterally attacked.
    5. The principle that a judgment of a court having jurisdiction of the subject-matter and parties cannot be collaterally impeached applies to an action in rem, as in such case all the world is a party.
    6. Want of jurisdiction over the subject-matter will subject the judgment of any court to collateral impeachment.
    7. The distinction between judgments of courts of general jurisdiction and those of certain inferior tribunals of special limited jurisdiction is that in the former class, initial jurisdiction of the subject-matter of proceedings being made to appear, another court will not, by way of collateral impeachment, look behind the judgment for errors of judgment, either in matters relating to jurisdiction or otherwise, while in the latter class the court will look behind the judgment to ascertain whether there appears on the. face of the proceedings every requisite to sustain the judgment, and, if these requisites appear on the face of the proceedings of the inferior tribunal, the judgment cannot be collaterally assailed.
    8. In controversies for the determination of title of real estate,, the decree of probate of a will by any court is not conclusive, but, under the statute, such probate is only prima facie evidence of the validity of the will, unless brought after seven years, &c.
    9. The jurisdiction of the probate of wills conferred by the Orphans Court act on the surrogate court is essentially the same probate jurisdiction formerly exercised by the ecclesiastical courts of England and there administered by the ordinary and. his surrogate and the metropolitan. *

      10. In view of Orphans Court act (3 Comp. Stat. 1910 p. 3872 §§ 156, 158), relating to conclusive effect of probate of wills by surrogate, and in view of the history and origin of the probate of a will, a grant of probate by the surrogate is not a judgment of an inferior court, and under section 13 (3 Comp. Stat. 1910 p. 3816), imposing the alternative duties of probating the will, if no doubts arise on the face of the will, and sending on citation to parties, &c., to the Orphans court if a doubt arises on the face of the will, the determination of the alternative is an exercise of judicial function, determining jurisdiction and not subject to collateral attack by an amendeid defensive pleading, in a suit to construe a will so as to set up the fact that the will was doubtful on its face, precluding probate by the surrogate.
    11. Laches may be predicated on delay in ascertainment of one’s rights, when the duty and opportunity of ascertainment exists.
    12. Under Orphans Court act, providing that a surrogate shall not probate a will if doubtful on its face, and that an appeal shall be taken in three or six months, an heir failing for over four years to attack the probate of a will is guilty of laches, where he at all times could have ascertained the facts.
    On bill for construction of will. Hearing on motion of defendant G-. Walter Lees to amend answer and cross-bill.
    The bill is filed by complainants as executors of the last will and testament of Henry C. Lees, deceased, and seeks the construction of certain provisions of the will of testator to enable the executors to properly discharge their duties as such. The bill sets forth the death of said Lees, testate, in May, 1910; the probate of his will by the surrogate of the county in which testator resided; the issuance of letters of executorship to complainants and the terms of the will; and prays for construction of certain of its provisions.
    Defendant Gr. Walter Lees, one of the sons of testator, has filed an answer and cross-bill. The answer admits the probate and letters of executorship and asserts a construction of the will favorable to him; the cross-bill, which is filed as a part of the answer, sets forth the will, its probate and letters to complainants and seeks to charge complainants with certain liability which it is alleged is not recoverable in the orphans court by reason of the limited jurisdiction of that court in matters of construction of wills. An answer has been filed by complainants to the cross-bill and a general replication has been filed to the’ answer of defendants.

      Shortly prior to the time set for final hearing an application was made by defendant G-. Walter Lees for leave to amend his answer and cross-bill. The amendment now proposed withdraws from the answer that part which admits probate of the will and the granting of letters and withdraws that part of the cross-bill which asserts probate and issuance of letters to complainants, and substitutes therefor averments for both the answer and cross-bill, to the effect that the surrogate was without jurisdiction to admit the alleged will to probate or grant letters thereon. The proposed amended pleading sets forth specifically and in detail the physical condition and appearance of the will when it was presented to the surrogate for probate, and the claim is now made that these averments adequately disclose that doubts arose on the face of the will when it was presented for probate which denied to the surrogate jurisdiction to admit it to probate. The proposed amended cross-bill seeks an accounting from complainants to cross-complainant, as an heir, for moneys received and expended by complainants.

      Messrs. Ott & Carr, for the motion.

      Messrs. Marter & Rose, contra.

   Leaming, V. C.

By the amended answer and cross-bill which defendant now seeks to file, this court is asked to disregard the official probate of a will, and to treat the will as a nullity, and refuse to construe its provisions, and to require the persons who have been appointed executors of the will to account to an heir for his share of the personal estate of the deceased which has come to their hands. If the averments of tire proposed amended pleadings are clearly inadequate to afford any part of the relief sought, it is obvious that the application to amend should be denied, for no benefits can be received through an impotent pleading.

It is manifest that the accounting which defendant seeks through his proposed amended pleading cannot be entertained. Should the probate of the will be set aside or disregarded an heir, as such,' does not thereby become entitled to an accounting for a share of the personal property of the deceased which has come to the hands of others. Such an accounting must be in behalf of an administrator. But, disregarding that infirmity of the proposed pleading, the inquiry is presented whether the averments of the proposed pleading are adequate to enable this court to disregard the probate of the will in this proceeding.

It has been repeatedly held in this state that a surrogate, in-admitting a will to probate, holds a court and exercises judicial-functions in the field prescribed, by statute, and that his decree or order of probate is to be reviewed by appeal and is not subject to collateral attack except for fraud or want of jurisdiction. The proposed amended pleading is a collateral attack upon the judgment of that court, and bases the attack upon the claim that the surrogate was without jurisdiction because of doubts which it is alleged arose on the face of the will which his order admitted to probate; no fraud is charged.

The statutory authority of the surrogate to admit wills to probate is as follows:

“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 premises, but shall issue citations to all persons concerned to appear in the orphans court of the same county, which court shall hear and determine the matters in controversy.” P. L. 1898 p. 718; 3 Comp. Stat. p. 3816 § 13.

No adjudicated case in this state has at any time definitely determined the meaning of the expression “in case doubts arise on the face of the will.” In Myer's Case, 69 N. J. Eq. 793, 796, the suggestion is made by our court of errors and appeals that it may relate to erasures and interlineations. But, for present purposes, it may be assumed that the averments of the proposed answer and cross-bill disclose with sufficient definiteness that when the will here in question was presented to the surrogate for probate there appeared on the face of the will interlineations or erasures or mutilations which an accurate adjudication would have determined to be suggestive of such doubts as the statute confenrplates.

It will be observed that the statute imposes upon the surrogate two alternative duties: If no doubts arise on the face of the will he is required to take the necessary depositions and admit the will to probate if the depositions of the witnesses are by him found sufficient. If doubts do arise on the face of the will he is required to issue citations. The duty is thus specifically imposed upon the surrogate to determine whether doubts arise on the'face of the will, for he cannot perform either of the alternative duties required of him without first determining whether doubts so arise; if he determines that such doubts exist, he is required to issue citations; if he determines that doubts do not so' exist, he is required to proceed to probate. The determination of‘the existence or non-existence of such doubts is clearly a function necessary to the exercise of his jurisdiction, and in similar instances it has been regarded as necessarily forming a part of his jurisdiction. Stanley v. Safe Deposit Co., 87 Md. 450; In re Shoenberger’s Estate, 139 Pa. St. 132. In granting probate of the will here in question the surrogate necessarily determined that no doubts arose on the face of the will. For any error in that determination the statute has provided a remedy by appeal, and the question here presented is whether such error Can be made the ground of collateral impeachment of the probate in this cause.

Nothing can be said to be more firmly engrafted in our jurisprudence than the principle that in the absence of fraud of the parties a judgment of a court of general jurisdiction cannot be collaterally impeached if the court had jurisdiction of the subject-matter of the controversy and the parties. White v. Crow, 110 U. S. 183. Jurisdiction, in the sense thus used, has been defined by our federal supreme court to be “the power to hear and determine a cause.” In the exercise of the power to hoar and -determine a cause which has been properly instituted, a court is necessarily called upon to determine matters on which its jurisdiction to proceed and award final judgment depends. It has accordingly been uniformly held that in the application of the principle first stated to cases in which the jurisdiction of a court of general jurisdiction embraces cases of the class to which the case belongs and the collateral attack is based upon a claim of want of jurisdiction by reason of an alleged error of the court in determining a question upon which its jurisdiction was dependent, the determination of the court touching matters upon which its jurisdiction was thus dependent is conclusive as against such collateral impeachment, whether or not the court has fallen into error in such determination. The case of Plume v. Howard Saving Institution, 46 N. J. Law 211, was a case of that nature. In that case an administrator to whom letters had been granted by the orphans court had brought suit for the recovery of money deposited in bank by plaintiff’s intestate. The defence was a collateral attack on the order of the orphans court appointing plaintiff as administrator and was based on a claim of want of jurisdiction of the orphans court to appoint plaintiff as administrator by reason of want of proof before the orphans court of the death of plaintiff’s intestate (the only evidence of death having arisen from a legal presumption of death by reason of long absence), and also other alleged errors of the orphans court touching its own jurisdiction. The supreme court of this state held that the proceeding before the orphans court having-been one of a class over which that court had jurisdiction, no inquiry could be made by another court, except on appeal, whether the orphans court had fallen into error in determining facts upon which its own jurisdiction depended. At p. 229 the opinion proceeds: “Consequently, when the orphans court of the county of Essex, having the matter by the requisite proceedings before it, awarded letters of administration in the present case, it will be intended, by force of the rule of law just stated, that it decided all facts requisite to validate its action. If it had not been deemed to be satisfactorily shown that the alleged intestate was dead, and that lie was not resident at the time of his death in this state, and that the plaintiff, although not the original petitioner, could be legally appointed the administrator, the decree which was made could not have been lawfully made, and the consequence is, it must be held in this incidental proceeding that such matters were passed upon by the court. To such a procedure the maxim ‘omnia praesumuntur rite esse acta’ is applicable. And with respect to the present inquiry it matters not at all whether the clause of the statute that regulates the proceedings on application for authority to administer the estate of non-resident decedents was rightly construed by the orphans court, inasmuch if an error exists in that particular it cannot be corrected except in a direct appellate review.” The Lessees of Grignon v. Astor, 2 How. (U. S.) 319, and the several cases there cited, are to the same effect.

The principles above stated relate alike to proceedings in rem and in personam. In proceedings in rem there are no adversary parties, and the only question of jurisdiction in such proceedings is the power of the court over the thing — over the subject-matter before the court — without regard to the persons who may have an interest in it; “all the world are parties.” Lessees of Grignon v. Astor, supra.

If the principles above stated, touching the exemption of judgments of courts of general jurisdiction from collateral impeachment, are applicable to a grant of probate by a surrogate’s court, I think it clear the proposed amendment here in question cannot be allowed. The claim made by the proposed amendment is not strictly a claim of want of jurisdiction. As already stated, want of jurisdiction over the subject-matter will subject the judgment of any court to collateral impeachment. The surrogate had jurisdiction of the proceeding before him. The statute confers upon the surrogate a general jurisdiction touching matters of probate of wills and defines his duties and provides an appeal for errors of judgment in the performance of those duties. The concrete claim here made is that the surrogate erred in the performance of his duties in a matter intermediate the inception of his jurisdiction of the cause "and his final decree therein, and that his error was in determining that no doubts arose on the face of the will, and was therefore an error in adjudicating a matter upon which his jurisdiction depended. The matter of probate was by proper proceedings brought before the surrogate in a case of a class within his jurisdiction and his jurisdiction over the individual case thereby attached. He was then required to determine, in a case properly before him, whether he should grant probate or issue citations, and to determine this, he was obliged to determine whether doubts arose on the face of the will which was then before him for the purpose of enabling him to so determine. Thus, with the evidence for and against the existence of doubts before him he determined that no such doubts in fact arose. It is through this claim of error of judgment in the adjudication of a matter which the surrogate was required to adjudicate that it is now sought to collaterally impeach the probate. All of the evidence upon which such an adjudication can be based was before him. Can we now inquire if he fell into error? The real question now presented is not whether doubts arose on the face of the will; -it is whether in a collateral proceeding it can be asserted that doubts so arose.

From the decisions already referred to, it is obvious that if the present probate had been granted by the orphans court the present proposed collateral impeachment of that probate could not be entertained; but a distinction has long been recognized between judgments of courts of general jurisdiction and those of certain inferior tribunals of special and limited jurisdiction. Judgments of courts of the latter class have been denied that degree of exemption from collateral impeachment which is uniformly accorded to judgments of courts of the former class. The difference, in this respect, between the two classes of judgments, I understand to be this: In the former class, initial jurisdiction of the subject-matter of the proceeding being made to appear, another court will not by way of collateral impeachment look through or behind the judgment or decree for errors of judgment either in matters relating to jurisdiction or otherwise; while in the latter class, the court may on collateral impeachment look through or behind the judgment to ascertain whether there appears on the face of the proceedings every requisite to sustain the judgment. If these requisites are found to appear on the face of the proceedings of the inferior tribunal, the judgment is regarded as conclusive, as against collateral attack. In 23 Cyc. 1082, this latter statement is summarized as follows:

“And if the judgment of-an inferior court does affirmatively show the facts necessary to confer jurisdiction, then the same presumptions are indulged in favor of regularity and validity of its proceedings as are extended to the superior courts, and the record can be impeached and contradicted only in like cases and to the' same extent.”

See, also, Graham v. Whitely, 26 N. J. Law 254, 262; Clark v. Costello, 59 N. J. Law 234, 236.

In Lessees of Grignon v. Astor, supra, following Kemp’s Lessee v. Kennedy, 5 Cranch 173, and Ex parte Watkins, 3 Pet. 193, Mr. Justice Baldwin, in a case involving a collateral impeachment of a decree of a probate court, states the distinction as follows: '‘'The record is absolute verity, to contradict which there can be no averment or evidence; the court having power to make the decree, it can be impeached only by fraud in the party -who obtains it. A purchaser under it is not bound to look beyond the decree; if there is error in it, of the most palpable kind, if the court which rendered it have, in the exercise of jurisdiction, disregarded, misconstrued or disobeyed the plain provisions of the law which gave them the power to hear and determine the case before them, the title of the purchaser is as much protected as if the adjudication would stand the test of a writ of error; so where an appeal is given but not taken in the time prescribed by law. These principles are settled as to all courts of record which have an original general jurisdiction over any particular subjects; they are not courts of special or limited jurisdiction, they are not inferior courts, in the technical sense of the term, because an appeal lies from their decisions. That applies to 'courts of special and limited jurisdiction, which are created on such principles' that their judgments, taken alone, are entirely disregarded, and the proceedings must show- their jurisdiction;’ that of the courts of the United States is limited and special, and their proceedings are reversible on error, but are not nullities which may be entirely disregarded. They have power to render final judgments and decrees which bind the persons and things before them conclusively, in criminal as well as civil causes, unless revised on error or by appeal. The true line of distinction between courts whose decisions are conclusive if not removed to an appellate court, and those -whose proceedings are nullities if their jurisdiction does not appear on their face, is this: a court which is competent by its constitution to decide on its own jurisdiction, and to exercise it to a final judgment, without setting forth in their proceedings the facts and evidence on which it is rendered, and whose record is absolute verity, not to be impugned by averments or proofs to the contrary, is of the first description; there can be no judicial inspection behind the judgment save by appellate power. A court which is so constituted that its judgment can be looked ^hrough for the facts and evidence which are necessary to sustain it, whose decision is not evidence of itself to show jurisdiction and its lawful exercise, is of the latter description; every requisite for either must appear on the face of the proceedings or they are nullities.”

It will be noted that the present controversy in no way involves the title to real estate. The bill is filed for the construction of a trust created by the will and involves no issue other than the ascertainment of trust duties of the executors. In controversies for the determination of the title of real estate the decree of probate of a will is not regarded as conclusive, no matter by what court such decree of probate may have been granted. In an action of ejectment, based on a devise of real estate, the probate is only prima facie evidence of the validity of the will, unless the action is brought more than seven years from the date of probate, in which case it is under certain restricted conditions made conclusive of the formal execution of the will, and it is regarded as prima facie evidence only by reason of the provisions of our statute to that effect. But devises of real estate stand upon a wholly different footing from matters of mere testament, as that term was originally and technically understood. In England the jurisdiction of probate of testaments was early conferred upon the ecclesiastical courts, and there remained, notwithstanding the right, subsequently recognized, of a testator to devise real estate. But the probate was not there regarded as competent evidence in a court of law on an issue involving the title of lands. The jurisdiction to grant probate was lodged in the consistory court of every diocesan bishop, the proof of the will being taken before the ordinary or his surrogate. When the testator owned personal estate of a certain amount in two dioceses — bona notabilia — the will was proved before the metropolitan of the province, by way of special prerogative; hence, called the prerogative court. Rol. Abr. 908; 2 Bl. Com. 508, 509. These probates before the ordinaiy or his surrogate, or before the prerogative court, were subject to review by appeal to the arches court and court of delegates, but were regarded as conclusive in the common law courts except as to the title to real estate. The court of chancery at one period refused to grant relief against a probate for fraud, so long as the probate remained unrevoked by the spiritual courts. Archer v. Mosse, 2 Vern. 8; Nelson v. Oldfield, 2 Vern. 76; Plume v. Beale, 1 P. Wms. 388. But a devise of real estate was regarded as in the nature of a conveyance by statute — as a conveyance declaring the use to which 'the land should be subjected; the difference between such a conveyance and a conveyance by deed being that the former required the acutal subscription of witnesses. 3 Bl. Com. 378, 501. The probate jurisdiction of the ecclesiastical court being limited to matters of personal property, it necessarily followed that in an action of ejectment by a devisee the probate was not regarded as effective to establish the validity of the will, and its validity as a conveyance accordingly formed a part of the issue presented. In harmony with this conception of a devise a statute was passed by the general- assembly for the east province of New Jersey which met in March, 1682, as follows:

“That all wills in writing, attested by two credible witnesses, shall be of the same force to convey lands, as other conveyances being registered in the Secretaries office within this Province, within forty days after the testator’s death.” L. & S. Grants and Concessions 236.

And in 1713 and 1714 a similar statute declared that all wills thereafter made in the manner provided by the act, and regularly proved and entered upon the books of record or registers in the secretary’s office, should be sufficient to devise and convey land as effectually as if tire testator had conveyed the same in his lifetime, and that the books in which they were registered or recorded might be given in evidence and should be accepted and be sufficient evidence at all times and places. Pat. L. 5. After our independence, the act of December 16th, 1784 (Pat. L. 59), established our present orphans court. By section 4 of that act the ordinary was directed to appoint but one “deputy or surrogate” for each county. By section 15 the powers and duties of the surrogate, touching the probate of wills, were defined in language essentially the samé as the section of our present statute hereinabove quoted. By act of June 7th, 1799 (Pat. L. 397), it was provided that the books in which wills were recorded, and also a transcript of the record duly certified, should be received in evidence in courts and be as effectual as if the original will should be “then and there produced and proved;” and by act of November 9th, 1803 (Bloomf. 96), the surrogate was required to record the proofs of wills, and by section 3 of that act a form for letters testamentary was prescribed and a provision added that probates of wills and letters of administration granted by the surrogate should have the same validity and effect as probates of wills and letters of administration issued by the register of the prerogative office in the name of the ordinary, with the seal of office affixed. In Snedekers v. Allen (1806), 2 N. J. Law 35, this statute, and the statute of 1713 and 1714, above referred to, were urged as operative to render the record of the will and probate conclusive in an action of ejectment; but it was held to render the record only prima fade evidence in a controversy touching the title to real estate. In Harrison v. Rowan (1820), 3 Wash. C. C. 580; 11 Fed. Cas. 658, District Judge Pennington stated: “That until the law of 1784 [Orphans Court act above referred to] the jurisdiction of the ordinary was always considered, in this state, as being similar to that of the ecclesiastical court in England, and confined entirely to testaments of personal estate. That the validity of a will, in relation to real estate, was open for decision of the common law courts, upon a trial in ejectment or upon an issue of devisavit vol non, directed out of chancery. That the act of 1784 made no alteration in this respect; and that it has always been so understood, and such has been the practice.” Circuit Justice Washington, in the same case, concurred in that view. See, also, Foster v. Joice, 3 Wash. C. C. 498; 9 Fed. Rep. 555, where Circuit Justice Washington stated that but for the prevailing view of our state courts to the contrary he would deem the legislation above referred to operative to render a decree of probate conclusive as to a devise of land when the validity of the-will should come in question incidentally in another court. In Den v. Ayers, 13 N. J. Law 153, it was again pointed out that the probate jurisdiction conferred by our Orphans Court act included personal estate only and was not operative to establish title to real estate. That was an action of ejectment brought by a devisee under a will which had been denied probate by the orphans court. It is there held as follows: “The decree of the orphans court was incompetent evidence and was properly overruled. The jurisdiction of that court upon a caweat extends to a will as a will of personal estate, not of real estate. The existence and validity of the instrument as a will of real estate are open for trial in an action of ejectment, notwithstanding any decree of the orphans court either for or against it. The doctrine has been long settled here, and our practice has been uniform and consistent.” In Allaire v. Allaire, 37 N. J. Law 312, it was again pointed out that the legislation above referred to made the probate of a will no more than prima facie evidence of its validity in an action to determine the title to real estate. So far as the present inquiry is concerned, our statutes at this time will be found to be essentially the same as the statutes above referred to.

From the decisions already referred to, it is clear that the jurisdiction of probate of wills conferred by our Orphans Court act on our surrogates courts, orphans court and ordinary, has been uniformly regarded as essentially the same probate jurisdiction formerly exercised by the ecclesiastical courts of England and there administered by the surrogate, ordinary and metropolitan, and I think it may be said that the degree of conclusiveness attributed to the grants of probate of the ecclesiastical courts, except upon appellate review, in all matters in which tire title to real estate was not involved, has been always understood to obtain as to the similar grants of probate in this state by either the surrogate’s court, orphans court or prerogative court.

A grant of probate may thus be said to be peculiar* to itself, and, when considered with reference to its origin, history and purpose, it seems impossible to regard it, by whatever court issued, as a mere judgment of an inferior court whose judgments are denied the conclusive force attributed to the judgments of superior* courts. Nor can the surrogate’s court be regarded as a court of inferior jurisdiction when considered in connection with the, duties which it is required to perform. Its grants of probate of wills and of letters of administration are necessarily made the basis and foundation of the settlement and distribution of all estates of all deceased persons; the nature and importance of the powers conferred and duties imposed by the letters issued renders their conception as mere shadows of authority impossible. 2 Nels. Abr. 1302.

The decisions of our courts may be said to confirm these views. In Quidort’s Administrator v. Pergeaux, 18 N. J. Eq. 472, complainant, as administrator, had procured a money judgment against a defendant. He then filed a bill in this court in aid of his judgment at law to subject the equitable estate .of the judgment debtor in certain land to the lien of the judgment. Defendant sought to attack the validity of the letters of administration by evidence that decedent left a will. Touching that offer' the court said: “This evidence cannot be received, as the question of the right to administration cannot be examined here. The granting administration is exclusively with the ordinary and his surrogates. The grant, is a proceeding m rem, in the strict sense of that term. It constitutes the person to whom it is granted the administrator, whether rightfully or wrongfully granted; and it cannot be inquired into here collaterally. The act of the surrogate can only be reviewed by appeal to the orphans court, or prerogative court. Like the acts of all other regularly-constituted tribunals, the acts of the surrogate cannot be impeached collaterally. The only question that can be made is, whether he had jurisdiction. If the supposed intestate was not dead, or if letters lawfully granted to someone else were in existence, the grant would be void.” It will be observed that the proceedings before the surrogate are here placed upon precisely the same plane as those of the orphans court, or even common law courts of general jurisdiction, so far as collateral impeachment is concerned. As is held in Plume v. Howard Savings Institution, supra, errors of judgment in all matters which the statute requires the tribunal to adjudicate, including matters upon which jurisdiction is dependent, in a proceeding lawfully instituted of a class within the jurisdiction, cannot be reviewed except by appeal. If the supposed testator or intestate was not dead at the time probate proceedings were instituted, probate jurisdiction would necessarily fail, no matter by what court asserted, for in such case the proceedings would be void from the very beginning; and the same would necessarily be true of letters of administration if prior letters “lawfully granted to someone else were in existence.” In Ryno’s Executors v. Ryno’s Administrator, 27 N. J. Eq. 522, our court of errors and appeals approves the language above quoted from Quidort’s Administrator v. Pergeaux. In re Evans, 29 N. J. Eq. 571, 575, it is again pointed out: “That the proceedings of the surrogate, in admitting a will to probate, are those of a regularly-established court, and are to be treated accordingly, and that they can only be reviewed by appeal.” “If the probate be irregular or voidable for any cause, the remedy is by appeal, or by proceedings for the revocation of the letters testamentary.” In Steele v. Queen, 67 N. J. Law 99, our supreme court again recognizes that the surrogate acts judically and holds a court in probating wills, and declares that its decree is in a proceeding in rem and is conclusive and final, unless reversed on appeal by a court of appellate jurisdiction. In that case mandamus was sustained to compel the surrogate as a “judge” to issue an exemplified copy of letters pursuant to the federal statute. In Murray v. Lynch, 64 N. J. Eq. 290, 302, Chancellor Magic, after pointing out the judicial functions which the statute imposes on the surrogate, says: “The power to issue citations in that class of eases [doubts arising on the face of the will] will not arise except on an adjudication of the surrogate that such doubts are raised on the face of the will.” In Russell’s Case, 64 N. J. Eq. 313, 317, the same chancellor, sitting as ordinary, recognizes the principles defined in Plume, Administrator, v. Howard Savings Institution, supra, touching the conclusive effect that must be given to an order of the orphans court, as against collateral impeachment, in a matter in which that court has necessarily passed upon its own jurisdiction in making the order thus brought in question. While in Plume, Administrator, v. Howard Savings Institution, the order which it was sought to impeach in a collateral proceeding was an order made by the orphans court, the learned chief-justice, in delivering the opinion of our supreme court, said: “That a conclusive efficacy should be given to letters of administration by whatever tribunal issued, so far as merely collateral impeachment is concerned, is a plain dictate of sound public policy.”

Turning to our statute, as it presently exists, we find that by section 156 of our Orphans Court act (3 Comp. Stat. p. 3872) it is provided:

“The probate of wills, and letters testamentary, of administration and of guardianship, issued by the surrogate under this act, shall have the same validity and effect as the probate of wills and letters of administration and guardianship issued by the register of the prerogative office in the name of the Ordinary, with the seal of office affixed,”

and section 17 of the same act provides the form for letters testamentary to be issued by the surrogate, by which form the surrogate is made to certify under his hand and seal of office that the will, a copy of which is to be annexed to the letters, has been proved before him by the executors therein named, and that the executors are duly authorized to take upon themselves the administration of the estate of the testator, agreeably to the will. By section 158 of the same act the surrogate is required to record all wills proved before him or before the orphans court, together with the proofs thereof, and also the letters testamentary by him issued; this record, and certified copies thereof, are given the same force and effect as like records in the prerogative office, and are to be received in evidence in all courts of this state. The record of the will, the proofs taken, and the statutory certificate of probate, are thus made the statutory memorial of the surrogate’s judgment of probate, and this record is by statute given the same force and effect as a like record in the prerogative office, and is ordered to be received in evidence in all courts of this state.

In view of the decisions and legislation above referred to, it seems impossible to find justification for looking behind this judgment of probate in a collateral proceeding, in a case in which the judgment contains all matters specified by the statute for that purpose, for alleged errors of the surrogate in matters jurisdictional, or otherwise, which the statute required the surrogate to pass upon pending the proceeding before him and which he has necessarily passed upon, with the evidence before him, before awarding the judgment of probate. In the present case, no claim is made that the judgment of probate fails in any respect as to the statutory requirements touching the judgment. These provisions of the statute specifically defining the record which shall be made, and declaring the force which shall be given to the probate record when so made, are clearly inconsistent with the idea that the judgment of probate when so made and recorded can be properly classed as to its force and effect with those of special proceedings of certain inferior tribunals which may be set aside or disregarded when or because they fail to disclose on their face all matters necessary to their validity. I think it must be held that a grant of probate and letters testamentary made by a surrogate which conforms to the requirements of the statute as to form and proofs is as conclusive as a similar grant made by the ordinary, and that letters so issued cannot be impeached, except for fraud, in a collateral proceeding relating to personal property, for errors of judgment of the surrogate in matters upon which his jurisdiction may have been dependent, or otherwise, in so far as such alleged errors of judgment relate to matters intermediate the inception of his jurisdiction over the individual proceeding and the final judgment rendered by him therein.

Another circumstance should be also considered. The will here in question was probated more than four years ago, and since that time the executors have been executing their trust. The Orphans Court act (section 202) provides an appeal from a surrogate’s grant of probate and limits the period of appeal to three months for residents and six months for non-residents; and it is a purely legislative function to prescribe such limitations and their consequences. Myer’s Case, 69 N. J. Eq. 793, 796. The statute thus contemplates that errors of the surrogate in granting probate shall be reviewed by appeal within the period specified. Defendant claims that the alleged error of the surrogate has been only recently brought to his attention; but, assuming that to be true, the fact remains that the opportunity for ascertainment has at all times existed. He knew of the death of his father and of the probate of the will, and by due diligence could have discovered, pending the period allowed for appeal, all that he now claims to know. Laches may be equitably attributed to delay in the ascertainment of one’s rights, when the duty and opportunity of ascertainment exist, to the same extent as for delay in the assertion of such rights after their ascertainment. It may well be doubted whether this court can properly entertain defendant’s claim after so long a delay.

It should also be observed that this attack upon the probate is not made in this court, by reason of any peculiar jurisdiction exercised by a court of equity over matters of this nature. No fraud is alleged. Vincent v. Vincent, 70 N. J. Eq. 272. The proposed defence must be here treated the same as a similar defence made in a court of law to an action of replevin brought by the executors to recover personal property of the testator.

I am convinced that leave to file the proposed amended pleading must be denied.


source: Caselaw Access Project

author: Leaming, V. C.

license: Public Domain

text:
    Elizabeth Amanda DuBois v. Maria Waterman et al.
    [Submitted February 8th, 1915.
    Determined March 6th, 1915.]
    A bill alleged that a will, giving complainant a life estate subject to remainder over, authorized her to sell the property and apply the proceeds to her maintenance; that the income was inadequate for complainant’s support; that, her right of sale being challenged by defendant, she had been unable to find an advantageous purchaser; and that the will when properly interpreted reposed a trust in complainant touching the disposition of the estate. The bill Sought no relief touching the trust, but merely a construction of the will and a declaration that complainant was émpowered to sell. — Held, that it could not be maintained; the court of chancery not having jurisdiction to construe a will except as incidental to some relief afforded by the decree.
    On bill for construction of will. Hearing on demurrer.

      Mr. Austin H. Swackhamer, for the complainant.

      Messrs. French & Richards, for the defendants.
   Leaming, V. C.

•The bill is filed by the widow of Thomas DuBois for the construction of the will of her deceased husband. The bill, after reciting the will, asserts that its provisions wherein certain real estate is given to complainant for life, and at her decease to others, confers upon complainant the right to sell the real estate and apply the proceeds of sale to her maintenance. This right, the bill alleges, is challenged by defendants with the result that complainant is unable to find an advantageous purchaser. After alleging that the income of the estate is inadequate for complainant’s support, the bill prays.that this court declare and. determine whether complainant is not empowered by the provisions of the will to sell the real estate and apply the proceeds of sale to her support and maintenance.

Defendants have demurred to the bill, alleging want of jurisdiction of this court to construe the will except as an incident to equitable relief.

Apparently, in anticipation of this objection, the ninth paragraph of the bill alleges that the meaning of the will, when properly interpreted, is that complainant may sell the real estate, if necessary for her support, and that a trust is, in consequence, reposed in complainant, touching the disposition of the real estate and its proceeds of sale. It is now urged that this trust, and the necessity of its proper observance, confers jurisdiction on this court to entertain the bill.

The bill seeks no relief touching the alleged trust. "What it seeks is not direction as to the performance of complainant’s duty as a trustee, but a declaration by this court that complainant is a trustee and that the trust empowers complainant to make sale of the real estate and to confer a perfect title upon a purchaser. The bill is, in fact, a bill to quiet title to real estate, but lacks the necessary elements of such a bill. The specific relief prayed for is a construction of the will.

It has been so frequently held in this state that this court cannot be called upon to construe a will except as incident' to some relief which may be afforded by a decree that the question cannot be considered an open one. Hoagland v. Cooper, 65 N. J. Eq. 407; Goelz v. Sickle, 71 N. J. Eq. 317; Gillen v. Hadley, 72 N. J. Eq. 505.

Whether a bill could be entertained to determine the existence of a necessity in aid of a power of sale in a case in which a life tenant should be empowered by a will to sell real estate for support in the event of a necessity arising from inadequacy of income and a dispute existed touching the necessity need not be considered; the present bill presents no such,situation.

I will advise a decree sustaining the demurrer.


author: Howell, V. C.

text:
    In the matter of Alfred B. Cosey, a solicitor, &c.
    [Decided April 29th, 1915.]
    1. Evidence hold to show that a solicitor was guilty of extortion from, and of misappropriation of money of, his clients, justifying disbarment.
    2. A settlement of a controversy between an attorney and his client, by the attorney paying bach to the client money received, and surrendering notes executed by the client to the attorney, is evidence of extortion by the attorney from the client.
    On motion to strike from the roll.

      Mr. Nelson B. Gaskill, for the motion.

      Mr. Thomas S. Henry, contra.

   Howell, V. C.

A complaint was laid before the chancellor against Alfred B. Cosey, one of the solicitors of this court, that in the management of the business of his clients he had been guilty of malpractice. Upon filing the affidavits constituting the complaint the chancellor made an order requiring him to appear before one ,of the vice-chancellors, on a clay named, then and there to show cause why he should not be adjudged guilty of malpractice and thereupon be debarred from further practicing as a solicitor of this court, or be suspended from so practicing for such time as the chancellor should order, or be otherwise disciplined and punished fox his misconduct, as might be deemed equitable and just.

The hearing was fixed for June 23d, 1914, but was continued until November 2d of the same year, for the reason that the complaining witnesses were out of the country. It may properly be said at this point that in taking the testimony the greatest possible liberality was. extended toward the solicitor. All important questions as to the admissibility of evidence which were doubtful, or which were discretionary in the judge, were decided in his favor. He appeared in person, was confronted by the opposing witnesses, and had the benefit of advice of competent counsel and his assistance during the trial. The case was heard upon the theory that the/ question being tried was a question of personal privilege and not a question of either civil or criminal liability.

There were eight specifications in the complaint and order to show cause alleged against him. These will be taken up in their order. They charge extortion from his clients and the misappropriation of their money.

The first charge relates to a foreclosure proceeding carried on in this court under the title of Schoonmaker v. Richardson. The property in question is known as the City Market of Plainfield. Cosey agreed with Mrs. Conod, who was acting for a Mrs. Schoonmaker, her sister, and holder of the mortgage, that he would foreclose the mortgage for a fee of $75 and costs, which were estimated at $2.25. This would make a payment of $300 in all. Payments were made, as the foreclosure suit proceeded, as follows:

September 10th, 1913........................... $70 00
September 24th, 1913........................... 60 00
October 9th, 1913.............................. 34 00
November 10th, 1913........................... 78 00
Total ...................................$242 00
Counsel iee added.............................. 75 00
Total
$317 00

It will be observed by these items that there was an overpayment to Cosey of $17. The foreclosure suit proceeded, and at the end the costs were taxed at $145.93. This money (the costs) was collected-by Cosey, with the principal and interest of the mortgage on February 25th, 1914, and'was not paid over to Mrs. Schoonmaker until April 1st following. The taxation of costs included a special allowance under the rules of $51. While it is quite usual for solicitors of this court in making settlements for their clients to estimate the amount of taxable costs incurred In the proceeding, yet it can be hardly said that when a solicitor is dealing with his client he ought to have the same freedom in dealing with the estimated costs as he would have were he dealing with an- opposing solicitor. It appears by the evidence that the estimate made for that proceeding was arrived at by referring to a sheriff’s deed in a prior foreclosure of a mortgage upon the same property. This, however, does not palliate the offence with which Cosey stands charged. He received $242; the costs were taxed at $145.93, and if he had dealt openly and fairly with his client, the latter amount is the amount that she would have paid. As it is, he appears to have overcharged her in the item of costs alone, $96.07. I think it is fair to call this a case of extortion, for the reason that it is a dealing between a solicitor and a client. If the solicitor and the payer were dealing adversely, and at arms’-length, the situation would be entirely different, but the relation of attorney and client is one of the very utmost good faith and confidence, and any, the slightest, advantage taken by a solicitor of the lack of knowledge on the part of his client is reprehended as a serious breach of the ethics of the profession. In addition to the facts above set out in relation to this charge, it appears in the testimony that Cosey at the time of the settlement with his client endeavored to have her pay him a further sum of $25, as counsel fee, making a hundred dollars in all. While perhaps it cannot be said that anything beyond mere suggestion wa's made in relation to it, still suggestions of that sort may in some cases be very improper. At any rate, it points to the willingness of tire solicitor in this case to obtain from his client more money tiran he had agreed upon with her.

The next allegation against Cosey relates to property known as the Cottage street property, in litigation in what was known as the Thomsen suit. This was a suit brought by the accused solicitor in favor of Mrs. Conod against the Plainfield National Bank for the purpose of establishing a $3,000 mortgage held by her as a lien prior to an $8,000 mortgage held by Thomsen and pledged with the bank as collateral security for a loan. He agreed to carry the suit through for $200, and Mrs. Conod paid him that amount. She was compelled to pay the costs of the bank, which were taxed at $12.08. She paid Cosey on this account as follows:

February 26th, 1913............................ $60 80
March 27th, 1913.............................. 45 00
May 5th, 1913................................. 15 00
May 16, 1913.................................. 20 00
August 6th, 1913............................... 78 84
August 15th, 1913.............................. 18 00
August 27th, 1913, note......................... 75 00
Total ...................................$312 64

There was no explanation by Cosey of this overpayment, and I am bound to consider it extortionate, to the extent that it exceeds $200. Two of the cheeks, marked Exhibit P 6 and P 7, aggregating $96.84, were obtained from Mrs. Conod upon the statement that it was necessary to pay this money to the court of chancery before her case could proceed. Two things will strike a lawyer about this statement, one, that the court of chancery as such did not demand or receive any money from Cosey; and the other is that $96.84 would be an unusually large amount for costs in an unfinished proceeding. There is one other significant circumstance in relation to this case, and,that is, it disclosed the fact that the complainants costs were never taxed, so that it was impossible for Cosey to know that they amounted to $96.84.

The next allegation relates to the question of the liability of Mrs. Conod and her husband on the bond which accompanied the mortgage which was foreclosed in the case of Schoonmaker v. Richardson. Mr. and Mrs. Conod were stockholders in a corporation known as tire La Rue Realty Company; that company made the bond in question. Mr. and Mrs. Conod were advised by Cosey that they were liable on that bond, and he induced them to enter into an agreement in relation thereto, which was offered in evidence in the case. There is a discrepancy in the evidence concerning this agreement. By its terms Cosey undertakes to relieve the La Rue Realty Company of its liability on the bond in question. Mr. and Mrs. Conod both say that the real agreement between them was that Cosey should relieve them, Mr. and Mrs. Conod, from their liability on the bond on payment to him of twenty-five per cent, of the amount of the bond, the bond being for $5,000. By a manipulation, which need not be recited here, he succeeded in getting the old third mortgage canceled and tire bond destroyed and a new bond and mortgage made in. place thereof, which the La Rue Realty Company did not execute, and then claiming to have relieved Mr. and Mrs. Conod from their liability on the bond, he extorted from them notes aggregating $300 on account of the grossly outrageous fee agreed on. These notes were dated on January 27th, 1914, and were for $50 and $100 and $150, respectively. I am satisfied from the evidence that the claim of liability on the part of Mr. and Mrs. Conod on a bond which they had not signed was stirred by Cosey merely for the purpose of making a basis for extorting money from his clients. While the agreement appears to have been made between Mr. and Mrs. Conod of the one part, and Cosey of the other part, it is, on its face, an agreement for relieving, or causing to be relieved, the La Rue Realty Company from responsibility on the bond in question. I am satisfied that it was meant to be an agreement to relieve Mr. and Mrs. Conod of their liability on the bond, and this view is strengthened by a letter written by Cosey to Mrs. Schoonmaker, in which he says:

“I brought the whole bond and mortgage from no value to its present value and could and would have made a better bargain but for the fact that the La Rue Realty Company was on both bonds, which really means Mr. and Mrs. Conod and all of their property, and I knew if they were sued on the bond it would wipe them out entirely. I am under a contract with Mr. and Mrs. Conod to relieve them of those bonds; you also instructed me to see to it that they were relieved from those bonds.”

I am, therefore, convinced that statements made by Mr. and Mrs. Conod in relation to the conduct of Cosey in this matter are true, dud that by means of a statement which he cannot but have known was an incorrect statement of the law, he induced them to give him notes in the aggregate sum of $300, and also threatened them with suit for an amount equal to one-fourth of the bond ($1,250).

The next allegation relates to property known as No. 21 Lenox Place, Maplewood, the title to which stood in the name of Mrs. Conod. Cosey procured Mr. and Mrs. Conod to sign a deed, with the name of the grantee blank, in which blank the name of the Grove Realty Company was afterwards inserted by Cosey, but the deed was never acknowledged and never recorded. By means of the authority conferred upon him by the ownership of the property under this deed, he collected from Mr. Fuller, the tenant, $200 rent, being the -rent at the rate of $50 a month for four months. This money, the Conods say, was never repaid to them. Cosey admits that it was never repaid to them, but says that it was appropriated by him to the payment of fees and expenses in their various law suits; but he was unable to specify to what fees and costs they were so credited. It likewise appears in the evidence that Cosey kept no account in his books of account with the Conods, and it is somewhat difficult to see how he could have appropriated the money which was so received by him to the uses to which he says it was put, in the absence of some account or memorandum to show how it was done. There is some evidence to show that he notified the Conods that he was going to appropriate the money to costs and expenses in their law suits, but this does not seem to have ever met with their approval.

The next allegation against him refers to property known as 98 and 100 Morris avenue, Newark, the title to which was in Mrs. Conod. Her taxes for 1913 were not paid. For reasons which are unimportant here, it was found necessary that the taxes should be paid at once, and for this purpose Mrs. Conocí gave to the accused solicitor her check for $310, with the understanding that if the taxes did not amount to so much he should repay 'the surplus to her. He actually paid $274.40, leaving a balance of $35.60, which he never paid to her in any form, and for the retention of which he oilers no excuse whatever.

The next allegation against Mm relates to property on Market street, in Newark, the title to which was in Mrs. Conod. It was subject to a mortgage held by one Headley, and was in the hands of Elroy Headley, a solicitor of this court, for foreclosure. After considerable negotiation, Headley agreed that if the Conods would give him a deed for the property, and thus save the expense and time of foreclosure, he would pay him $75. The deed was prepared and executed by them and delivered to Cosey, to be delivered to Headley. He made the delivery and collected the $75. This money was never paid over to Mrs. Conod, but was said by Cosey to have been appropriated by him to start a suit for $10,000 against the La Rue Realty Company, which suit was never brought.

The seventh allegation against him relates to another instance of the supposed liability of the Conods upon another bond which had been given by the La Rue Realty Company. He demanded $300 as compensation for getting the Conods relieved from liability on this bond. On January 27th, 1914, Mr. and Mrs. Conod gave to Cosey three promissory notes for $50, $100 and $150, respectively, payable--- months after date. The blank was afterwards filled in while the notes were in Cosey’s possession by the insertion of the word “two,” in a different colored ink. These notes were renewals of the first set given by them to him. As far as I can see, Cosey, on this occasion, did nothing whatever in the direction of relieving the Conods of their supposed liability.

The last accusation is this: There were two foreclosure suits against property owned by Mrs. Conod which were known as the Benker and Davis foreclosures. Cosey represented to his clients that inasmuch as Mr. and Mrs. Conod were both made parties to the suit, they would have to answer, and that this made it necessary for him to prepare and file two answers in each suit, and for this he obtained the promissory notes of Mr. and Mrs. Conod for a sum aggregating $150. His first statement to them was that the answers would cost $25 apiece, making a total of $100, and when he came, to get the notes signed, Mrs. Conod says that he fraudulently got her to sign two notes for $50 each instead of $25 each. This he denies, but it is a fact, and is so admitted by him, that instead of filing four answers, he filed two, as he put it, joint answers of the husband and wife.in the two suits.

In the spring of 1914 the Conods conceived that advantage had been taken of them by Cosey, and they broke with him and demanded that he should pay back some portion of the money and redeliver to them the notes which had been paid and given to him by them. As the result of the negotiation, Cosey agreed that he would pay back tire sum of $300 in cash and would surrender notes aggregating $450, making $750 in all. While in an ordinary ease, a settlement of a controversy would be commended by the court, in a case of this character such a settlement can only be evidence that Cosey had extorted from his clients money and notes aggregating $750 in value.

I consider that the charges against Cosey have been fully proved, and that the case is a proper one for the severest discipline. The duly of a solicitor, in the exercise of his profession, is very well stated in the case of Fairfield v. Taylor, 60 Conn. 11. There the chief-justice, after a. statement of the facts in that particular case, says:

“It is hardly possible to characterize such conduct of an attorney-at-law in measured terms. That it was a gross violation of the attorney’s oath is only a moderate statement. That it manifested a low condition of moral sensibility is true, and that it showed the appellant to be utterly wanting in the qualities which would entitle him to public confidence is also true. It is not enough for an attorney that he be honest. He must be that, and more. He must be believed to be honest. It is absolutely essential to the usefulness of an attorney that he be entitled to the confidence of the community wherein he practices. If he so conducts in his profession that he does not deserve that confidence, he is no longer an aid to the court nor a safe guide to his clients. A lawyer needs, indeed, to be learned. It would be well if he could be learned in all the learning of the schools. There is nothing to which the wit of man has been turned that may not become the subject of his inquiries. Then, of course, he must be specially skilled in the books and the rules of his own profession. And he must have prudence and tact to use his learning, and foresight, and industry, and courage. But all these may exist in a moderate degree, and yet he may be a-creditable and useful member of the profession, so long as the practice is to him a clean and honest function. But, possessing all these great faculties, if once the practice becomes to him a mere ‘brawl for hire/ or a system of legalized plunder where craft and not conscience is the rule, and where falsehood and not truth is the means by which to gain his ends, then he has forfeited all right to be an officer in any court of justice, or to be numbered among the members of an honorable profession.”

Every word of the foregoing quotation applies to the case in hand.

An order will be made prohibiting Cosey from further practicing as a solicitor or counsel in this court. The result reached is concurred in by all the members of the court, the case having been considered at a general conference.


text:
    New Jersey Title Guarantee and Trust Company v. Richard F. Parker, executor, &c.
    [Submitted December 30th, 1914.
    Decided February 8th, 1915.]
    Where a grantor, who had irrevocably conveyed certain securities to a trust company in trust, to pay the income to himself and wife for his life, and after his death to pay the principal to those to whom he should direct by will, and, if ho should die intestate, to his heirs, made a will by which he directed the payment of the principal to the children of his brother, he could not change that disposition by an instrument directing the payment to his wife, without the consent of the children, since the creator of a trust, without reserved' power of revocation, cannot change the terms of the trust without the consent of all the beneficiaries.
    On final hearing on bill, answer, replication and proofs.

      The original bill in this ease was a bill of interpleader and had relation to some securities in the possession of the- complainant which were claimed by the defendant Katherine Junkin and by the defendant Richard Fay Parker, as executor, and his children. In due course a decree of interpleader was passed and statements of claim were filed by the interpleading parties. The claim of Mrs. Junkin has for its object the establishment of a marriage settlement which, it is alleged, was intended to be executed by one Henry M. Parker in her favor. The circumstances are these: On August 8th, 1902, Mrs. Junkin, then unmarried, her maiden name being Bailey, arrived at the age of twenty-one years, and shortly thereafter her hand was sought in marriage by Henry M. Parker. Prior to the marriage a conversation was had between Miss Bailey and Mr. Parker, in which it is said that Miss Bailey refused to marry him until he should make provision for her by placing his money in trust, and arranging that one-third thereof should be paid to her, and -at his death the whole fund should go to her. To this he appears to have assented. In pursuance of the understanding that was arrived at, Mr. Parker, on June 4th', 1903, executed a document in the form of a trust deed, by which he transferred the securities in question to the New Jersey Title Guarantee and Trust Company in trust by the following words of transfer:
    “That the said party of the second part, in consideration of the sum of one dollar to him in hand paid by the party of the second part * * * has irrevocably granted, conveyed, transferred, assigned and set over, and does hereby irrevocably grant, convey, transfer, assign and set oyer to the party of the second part * * * all and singular the securities and money enumerated in the annexed schedule * *
    The deed then proceeds as follows:
    “With full power to retain or change at all times any and all present or future investments, and to reinvest any and all proceeds of such investments in good interest bearing securities to be approved by it, whether such proceeds shall be derived by it from the sale of such securi'ties or from the payment of the amounts secured by the several parts thereof, or from stock dividends or other accretion to the principal; to receive and collect the rents, interest, income and dividends thereon, and after deducting therefrom its compensation as hereinafter fixed to pay over the balance of such rents, interest, income and dividends to the said party of the first part, during- the term of his natural life, in equal quarterly payments as nearly as may be, or in more frequent payments if the same may be conveniently made from time to time by the party of the second part, and shall be requested by the party of the first part. “Second: To receive and hold upon the trusts hereby created such 'other and further property of every nature as may from time to time, be, granted, assigned, transferred or conveyed to it by said party of the first part.
    “Third: Upon the death of the said party of the first part to pay over and distribute the entire trust fund then in its possession under the terms of this deed to such persons and in such proportions as the party of the first part shall by his last will and testament, direct and provide; but if said party of the first part shall die intestate then, upon his death, to pay over and distribute said trust fund to and among such persons as would be entitled to receive the same under the intestate laws of the State of New York had the party of the first part died intestate and a citizen and resident of that state.”
    Tlie execution of this deed was acknowledged on June 11th, 1903. On that day it, with the securities in question, which were inventoried in a schedule annexed to the deed, were delivered to the trust company, and on June 17th, 1903, the parties were married. At about this time Mr. Parker appears to have given directions to the trust company about the division of the income from the securities. This transaction appears in an entry in the books of the trust company in the following-words :
    “Mr. Parker has elected to have his income mailed to him monthly and has instructed us to send the net amount to him as follows, two-thirds in a draft or check to his order, and one-third in a draft or check payable to the order of his wife Katherine Frances Parker.”
    The trust company appears not to have had any written authority, at that time, from Mr. Parker.for the division of (he income between him and his wife. This they sought to get, and finally, on November 4th, 1905, received from him a direction, in writing, as follows:
    “Under an agreement dated .June 4th, 1903, you arc to pay over to me a certain income from investments and securities held by you in trust for me, and I hereby authorize you to pay one-third of such income to my wife Katherine Frasier Parker, and the remainder to me, in monthly installments.”

      Subsequently, and on October 10th, 1909, Mr. Parker authorized the trust company to pay over one-third of his income, including that from his grandmother’s estate, to his wife, Katherine, and from that time forward, until his death, his wife received for her own use one-third of the income from the securities mentioned in the inventory annexed to the deed of trust, and also from his grandmother’s estate.
    At or about the time when the deed of trust was made, Mr. Parker executed a will, which was destroyed several years later, and was not before tire court. The evidence was, however, that by the will, upon his death, all his property was devised to his wife. On December 16th, 1903, Mr. Parker executed a power of attorney to the trust company, which authorized it to receive and receipt for all moneys and securities payable to Mm, to endorse checks for deposit and collection, transfer stock, and to hold such moneys and securities upon the trusts created in the deed of trust above mentioned in like manner as if the same had been originally mentioned and enumerated in said deed of trust. This document, in connection with the deed of trust, appears to have invested the trust company with full and complete control over any securities of Mr. Parker’s which came into its hands. In March, 1909, Mrs. Parker, her husband and her mother-were living together in Florence, Italy. Some time during that month Mrs. Parker left her husband and returned to the United States with the intention of never again returning to or living with him, nor did she after that either return to him or live with him. Her mother, Mrs. Margaret IT. Bailey, remained in Florence with Mr. Parker. Some time during the early summer of that year Mrs. Parker caused to be prepared by her solicitor in New York a document which contains the following recitals:
    “"Whereas heretofore and on or about the fourth day of June, 1903, I, the undersigned, Henry M. Parker, then being a resident of the city of Yonkers, Westchester County, New York, did make and enter into an ante-nuptial agreement with Katherine F. Bailey, then my intended wife, which provided that in consideration of such marriage I would deliver all the stocks, bonds and other securities then owned by me to the New Jersey Title Guarantee and Trust Company to be held in Trust, two-thirds of the income thereof to be paid to me during the term of my natural life, and one-third of said income during such period to said Katherine P. Bailey, in the event that she should keep her promise to become my wife. The said ante-nuptial agreement further provided that ‘nipón my death the entire principal of said trust estate should be paid to said Katherine F. Bailey; and
    “Whereas the said ante-nuptial agreement was not made in writing and no written memorandum thereof was signed by me, except that pursuant thereto and on said 4th day of June, 1903, I delivered to said New Jersey Title Guarantee and Trust Company all stocks, bonds and other securities then owned by me, and entered into a trust agreement with said New Jersey Title Guarantee and Trust Company which provided that said trust company should hold said stocks, bonds and other securities in trust, and collect and pay over the income thereof during the term of my natural life, and at my death to pay over the principal thereof as directed in my will, and simultaneously therewith and as a part of the same transaction I delivered to the said trust company in writing a direction that two-thirds of the income from said trust estate be paid over to me and the remaining one-third of said income be paid to said Katherine F. Bailey, now Katherine F. Parker, and I also at the same time duly executed in writing my will, wherein it was provided that upon my death the entire principal of my estate should be paid to said Katherine F. Bailey, now Katherine F. Parker, for her own absolute use forever; and
    “Whereas, the said Katherine F. Bailey did on her part keep and perform her promise of marriage; and
    “Whereas I, the said Henry M. Parker, was duly legally married to the said Katherine F. Bailey in the Village of Bronxville, County of Westchester, State of New York, on the 7th day of June, 1903; and
    “Whereas, it is my desire that said ante-nuptial agreement shall be fully and faithfully carried out and performed in every particular.”
    The said Henry M. Parker then and thereby ratified, affirmed and adopted the said 'antenuptial agreement and promised and agreed to and with his said wife, Hatherine, that she should receive all the benefits as therein provided, and he thereby gave, granted, assigned and set over to her the true and full sum of one-third of any and all income produced by his estate during the term of his natural life, and promised and agreed that the entire principal of his said estate should belong and he paid to her -upon his death for her sole and absolute use and benefit forever.
    This document prepared in handwriting was sent to Mrs. Bailey, at Florence, was there copied in typewriting and was sent to Mr. Parker, who had gone to Switzerland. About two weeks later Mrs. Bailey followed him and they went together to the office of the American consul, at Luzerne, and there executed the document on June 24th, 1909. The evidence is that the decument in question was delivered to Mrs. Bailey and was by her ser either to Mrs. Parker or to her lawyer, Mr. Oglesby, and that M Oglesby, within a month after its execution, delivered the original paper to the trust companj', which immediately sent a copy thereof to Mr. Parker notifying him of its receipt and inquiring about it. A copy was likewise sent to Mr. Wilson, a lawyer practicing in New York, who had theretofore acted as Mr. Parker’s counsel. Under this instrument Mrs. Junkin now claims the whole of the estate left by the said Henry M. Parker.
    In 1912 Mrs. Parker obtained a divorce from her husband in St. Louis, Missouri, and some time thereafter Mr. Parker executed another will which has been admitted to probate, in and by which he gave all the rest, residue and remainder of his estate to the children of his brother Richard Pay Parker, who should be living at the time of his death, in equal shares, and appointing Richard Fay Parker the executor thereof. Under this will Richard Fay Parker, as executor, and his children, claim to take the whole of the estate of the deceased. Mr. Henry M. Parker died on March 4th, 1914, and his wife subsequently married Mr. Junkin, whose wife she now is.

      Mr. J. Boyce Smith, Jr., and Mr. Arthur Barnes (of the New York bar), for Katherine Junkin.

      Mr. Charles H. Hartshorne and Mr. William C. Wilson (of the New York bar), for the defendant Richard Fay Parker and his children.
   Howell, V. C.

The essential difference between the two instruments above recited lies in the final destination of the fund of which Mr. and Mrs. Parker were life tenants. The earlier document provides for its distribution in accordance with Mr. Parker’s last will and testament, or, if he should die intestate, for its distribution among such persons as would be entitled to receive the same under the intestate laws of New York if he had died intestate and a citizen and resident of that state. It is obvious that in case it should be found that the instrument of 1903 is valid and is subsisting, the whole of the estate in question is disposed of thereby, and that in that case there is nothing left for the second instrument to operate on. It therefore becomes necessary at the outset to determine upon the validity of the earlier instrument. Tf that is irrevocable, as by its terms it purports to be, and is still in force, then and in such case the distribution of the fund must be in accordance with its provisions.

The general rule is that a completed trust, without reservation of power of revocation, can only be revoked by consent of all the cesluis; and that even a voluntary trust for the benefit wholly or partly of some person or persons other than the grantor if once perfectly created and the relation of trustee and cestui que trust is once established, will be enforced, though the settlor has destroyed the deed or has attempted to revoke it by making a second voluntary settlement of the same property, or otherwise, or if the estate by some accident afterwards becomes revested in the settlor. Perry Trusts § 104. This is the undoubted rule in New Jersey. Isham v. Delaware, Lackawanna and Western Railroad Co., 11 N. J. Eq. 227. There Thomas G. Trumbull conveyed land to his father, John M. Trumbull, in trust, to be leased until April 1st, 1840, the rents being payable to Thomas’s two sisters, and after that date to be sold for the highest price they would bring, the proceeds to be invested, the interest paid to said sisters during life, and to their children after death, until the youngest child should be twenty-one, and then the principal to be paid to the said children in equal parts per capita. In 1836 the two sisters joined with the trustee, their father, in reconveving the lands to the original grantor. It was held that the conveyance did not transfer the legal title to the original grantor. In Gulick v. Gulick, 39 N. J. Eq. 401, the husband conveyed lands to his wife, she to hold the same in trust for his benefit during his lifetime, and at his death to sell the same and divide the proceeds between his widow, if living, and their children or grandchildren. It was held that this was a trust which must be maintained inviolate, and that the husband and wife could not substitute another trust in relation to the same lands in such a manner as to affect the interests of the children and grandchildren. The next case in point of time is Pillot v. Landon, in the court of errors and appeals, in 46 N. J. Eq. 310, which points indirectly at the same result, but does not directly and positively-decide the point, because it was unnecessary to a decision of the appeal. This was followed by Taylor v. Draper, 71 N. J. Eq. 309, where Chancellor Magie uses the following words: “The right acquired by children under a declaration of trust by a father made in their favor for such a consideration differs in no respect from that which would result in a deed to them; when a voluntary settlement has been completely executed with no power of reservation reserved, it was held, in the court of errors and appeals, tliat it could not be annulled except with the consent of all the cestuis que Irasi. In the case of Crue v. Caldwell, 52 N. J. Law 215, Chancellor Magie, speaking for the court of errors and appeals, says: “The settlement was completely executed; it differs in form only from a settlement by conveyance expressly in trust, without power of revocation reserved, which when once perfectly created cannot be annulled without the consent of all the cestuis que trust. Unless the entire settlement can be successfully assailed in equity, and there set aside as the product of fraud, undue influence or mistake, the several parts of it must stand.” The same rule seems to prevail in Massachusetts and New York. Lovett v. Farnham, 169 Mass. 1; Sands v. Old Colony Trust Co., 195 Mass. 575; Mabie v. Bailey, 95 N. Y. 206. And also in England. Villers v. Beaumont, 1 Vern. 101; Boughton v. Boughton, 1 Atk. 625; Newton v. Askew, 11 Beav. 145.

When, therefore, Mr. Parker executed the original instrument he created a life estate in himself, with remainder to such persons as he should by his last will appoint, and in default of such appointment, to his heirs-at-law and next of kin under the intestate laws of the State of New York, and having executed a last will, in pursuance of the power and reservation contained in the trust deed, by which he gave the residuum of his estate, including the trust fund in question, to the children of his brother, he thereby created remaindermen who, under the provisions of the trust instrument, become entitled, under the rules of law above stated, to the capital of the fund. Having thus irrevocably disposed of the remainder, he could make no further or other disposition of it without the consent of the remaindermen whom he bad so created, and, inasmuch as such consent cannot be had, the fund goes irrevocably to them. ‘

This view of: the case renders it unnecessary for me to take up and decide the other difficult questions in the case which were so ably argued by counsel on both sides.

I will advise a decree in accordance with these views, and I will hear counsel at the time of the settlement of the decree on the question whether the fund should go in the first instance to Bichard Fay Parker, executor of Henry M. Parker’s will, or whether it should go directly to his two children as devisees.


text:
    Charles F. Roderer et al. v. William H. Fox et al.
    [Decided May 4th, 1915.]
    1. The legal disqualification of a trustee to buy at his own sale applies to a sale by a special master in a partition suit, comprising lands whereof the complainant was seized in his own right of the one-half interest, and as executor of the will of a deceased co-tenant of the remaining one-half interest, and he is charged with certain duties as trustee, cast upon him by the will in relation to that share, unless before the sale leave is granted to the complainant to become a bidder.
    2. But such permission must be sought before the sale takes place, and ought not to be delayed until after the rights of the parties are fixed by the sale itself. The reason for this is, that when the sale has once taken place the mischief, if any mischief there is in the transaction, has been done; while if the permission is sought prior to the sale it can be given under such conditions as will fully protect all the parties in interest.
    3. Accordingly, the petition presented by the complainant will be dismissed, being designed to supplement the sale held by the special master, and to obtain the confirmation of the sale upon the ground that the complainant has paid the full and fair value of the premises, and has been guilty of no fraud upon the rights of the beneficiaries under the will.
    On petition lor relief in a suit for partition of lands.

      Mr. Elmer King, for the petitioner.

      Mr. Herbert J. Hannoch, for the respondents.
   Howell, V. C.

Mrs. Mary C. Fox died seized qf an undivided one-lialf inteiest in lands in Dover. Her brother Charles F. Roderer was seized of the other undivided half. She left surviving her her husband, William H. Fox, and three infant children, who have not yet attained their majority. She left a will by which she appointed her brother Charles F. Roderer to lie executor and directed him to collect the rents, issues and profits of the real estate owned by her at the time of her decease, and after deducting the amounts paid for taxes, insurance and repairs, to pay the sanie to her two aunts, Jennie Riley and ’Kate Riley, every three months during the terms of their natural lives, and after their death to her three children, share and share alike. This will was proved on June 1th, 1913, and letters testamentary were issued thereon to the said Charles F. Roderer. The two aunts of Mrs. Fox (Jennie Riley and Kate Riley) arc still living. On June 5th, 1913, Charles F. Roderer brought suit in this court for partition of the lands which were thus owned jointly by him and Mrs. Fox at the time of her death. No defence was interposed, and in due course the premises were ordered sold under the direction of one of the special masters of this court. At the sale tlie same were purchased by the said Charles F. Roderer, and.a deed was made to him by the special master; he thereupon became invested with the title to that portion of the lands in question which were owned by Mrs. Fox in her lifetime, to wit, the undivided one-half thereof, and he at once entered into possession of the whole premises and lias had possession thereof from that time hitherto.

Subsequently, the surviving husband and the.infant children of Mrs. Fox brought suit in this court to set aside the sale upon the ground that Charles F. Roderer, being the executor of the will of his sister, was disqualified from bidding on the property at the master’s sale, and that he was so disqualified by reason of the duties which were east upon him by the will of his sister in relation to tire lands in question. This cause has been brought to a hearing and was decided in favor of the complainants, but no decree has jut been entered. Thereupon Roderer Bled a petition in the original partition suit alleging that he was the owner of a one-half interest .in the said premises, and that he was and is desirous of obtaining title to the undivided half of which Mrs. Fox died seized, and that he was willing to give therefor the full and fair value thereof and as much as or more than any other person would give, and that at the special master’s sale in the partition suit the property was struck off and sold to him for the sum of $5,800, which sale was afterwards confirmed by this court, and' in pursuance of which a deed was delivered to him by the special master, and that he has been in possession of the premises from that time forward, and praying that the sale so made to him might be confirmed by an order nunc pro lunc, and that tlio matter of the full value of the land be inquired into by the court and that he might be entitled to a conveyance through a master of the undivided one-half interest in said premises upon his paying a full and fair price for the undivided one-lmlf interest thereof.

It will be observed that this petition is designed to supplement the sale held by the special master in the partition suit, and by it the petitioner hopes to obtain a. confirmation of the sale had in the partition suit upon the ground that the petitioner has paid the full and fair value of the premises and has,been guilty of no fraud upon the rights of Mrs. Fox’s surviving husband-and devisees.

This requires an examination into the nature and character of the partition proceeding. It will be noticed that the complainant is the executor of the will of Mrs. Fox, and that by the terms of the will, he is entitled to the legal possession of her undivided half interest in the lands in question. In fact, he would 'not be able to carry out the provisions of the will unless such possession was accorded to him. To the extent to which he is by the will required to deal with the property he is a trustee, and being such trustee, he files his bill for the partition of the land which it is his duty to conserve and succeeds iir purchasing the same at the master’s sale. While it is not a case of a trustee purchasing at liis own sale, it is a case in which the trustee makes himself the magister litis and assumes control of the whole proceeding. Tire results which follow a purchase by a trustee at his own sale are clearly set forth in the case of Smith v. Drake, 23 N. J. Eq. 302.

It is true that this court will, in a proper ease, permit a trustee to become a bidder at his own sale, and I have no doubt but that a similar permission would have been given to Mr. Roderer to become a bidder at the sale now under consideration, but such permission must be sought before the sale takes place and ought not to be delayed until after the rights of the parties are fixed by the sale itself. The reason for this is, that when the sale has once taken place the mischief, if any mischief there is in the transaction, has been done; while if the permission is sought prior to the sale it can be given under such conditions as will fully protect all the parties in interest.

If authority is needed for this proposition, it will be found in Carson v. Marshall, 37 N. J. Eq. 213. There executors having the power to rent and sell real estate, purchased land over which they were given this power at a sale held by the sheriff of the county, under executions which were in force, and under which levies had been taken, at the time of the testator’s death; notwithstanding the fact that the trustees were not themselves the selling agents, their purchase was set aside.

The case of Colgate v. Colgate, 23 N. J. Eq. 372, was cited as authority for the propositions of law set forth in the petition. A careful reading of the case will demonstrate that it furnishes no support therefor, but that, on the contrary, the permission of the court was sought before any transfer of property was made.

I am therefore of the opinion that the motion must be denied and the petition dismissed, with costs.