author: Fielder, Vice-Ordinary.

text:
    In the matter of the probate of the alleged will of Mary Loori, deceased.
    [Decided December 2d, 1941.]

      Messrs. Drewen £ Nugent (Mr. John Drewen, of counsel), proctors for appellants.

      Messrs. Carey £ Lane (Mr. Harry Lane, of counsel), proctors for the respondents.
   Fielder, Vice-Ordinary.

This appeal presents a contest over probate of the will of Mary Loori dated June 9th, 1938, whereby the testatrix gave her entire estate to her husband Antonio Loori or in the event he should predecease her, to her two sons Joseph and Patrick equally, and appointed her husband executor or, in the event he should predecease her, then her son Joseph to be executor. Antonio Loori predeceased his wife by a little less than two months and she died September 12th, 1940, leaving ten children, all of full age, surviving her. Caveat against probate ivas filed by "William Loori, a son, and the contest coming on for hearing before the Hudson Orphans Court, that court by decree entered April 21st, 1941, denied probate and awarded counsel fees of $2,250 to the proctors for the caveator and proponents respectively, both allowances to be paid out of the estate of the deceased. The proponents appeal from the whole decree.

1 gather from the oral opinion delivered by the Orphans Court judge that he considered the will to be an unnatural one because it provided for but two of the testatrix’ children and therefore the two beneficiaries had the burden of showing there w;as no undue influence exerted on the testatrix; that the court also thought there were some undisclosed facts unknown to him which might affect the will as a valid testamentary disposition and, considering specifically the unnatural nature of the will, the proponents had not satisfied him that the will was not in some manner induced by some one acting on behalf of Joseph or Patrick Loori; hence he refused to grant probate.

That the court believed the will to be an unnatural one is not in itself a valid reason for refusing to admit it to probate, for no matter how unnatural or unjust the provisions of a will may appear to the court to be, if it was executed in compliance with statutory requirements by a person competent to make a will, as his free and uncontrolled act, the court cannot substitute its opinion for the expressed desire of the testator but must uphold the will. Middleditch v. Williams, 45 N. J. Eq. 726; 17 Atl. Rep. 826; reversed on other grounds, 47 N. J. Eq. 585; 21 Atl. Rep. 290; In re Eatley’s Will, 82 N. J. Eq. 591; 89 Atl. Rep. 776; In re Young’s Estate, 90 N. J. Eq. 236; 106 Atl. Rep. 425; In re Haness, 98 N. J. Eq. 645; 130 Atl. Rep. 655; In re Halton, 111 N. J. Eq. 143; 161 Atl. Rep. 809.

The uncontradicted testimony is that the execution of the ' will was attended with all the statutory formalities and the questions to be determined are whether the testatrix was mentally competent to make a will and if competent, whether she was influenced by any one to dispose of her estate in the manner she did.

Pacts which are certain are that at the date of her will the testatrix, who was about sixtjr-nine years of age, resided in a home in Jersey City owned by her husband, the members of the household for many years prior to and up to her death being her husband (until his death) and her unmarried sons Joseph, Patrick and Anthony. Her other children, of whom six were married and one unmarried, had homes of their own. She had had several strokes and was an invalid for the last ten years of her life. She was paralyzed from her hips down and had to be assisted in getting from her bed to her chair. She had a paralysis of one side of her face and by reason thereof had difficulty in 1938 in giving expression to her thoughts, which difficulty in speech was of gradual development as a result of strokes suffered prior to that year. She and her husband had made mutual wills in 1903 in which each had named the other as sole beneficiary, no provision having been made for the event of one predeceasing the other.

It is uncontradicted by evidence or circumstance that on June 1st, 1938, Antonio Loori was at the office of his son Joseph, who is a member of the bar of this state, when Julius .Kepsel, also a member of our bar and a friend and former associate of Joseph Loori, happened to be present. During the course of conversation Antonio Loori referred to the old wills he and his wife had executed and the difficulty which might attend probating them in case the attesting witnesses were dead Avas discussed, and thereupon Antonio Loori requested Kepsel to prepare a new will for him following the form of his old will, which Kepsel did at once and then and there Antonio Loori executed the new will, his son and Kepsel acting as witnesses, and the executed will was given to Joseph Loori to place in his safe. After the new will had been executed Antonio Loori requested Kepsel to call on his wife about making her will but gave him no directions as to what a new will should contain. Kepsel called on her the day her wall bears date and her will was drawn and executed that day.

Caveat against probate of Antonio Loori’s will was filed by his son William but before a hearing was had thereon, Mrs. Loori died and the contest over probate of the two wills was heard together, the result of which was that the Orphans Court admitted the will of Antonio Loori to probate but denied probate to Mary .Loori’s will. Ho appeal was taken from the decree granting probate to the will of Antonio Loori. The contest over the two wills developed a bitter family ferrd, on one side being arrayed children who received nothing under the wills and on the other the two children named as beneficiaries under Mrs. Loori’s will, and between them there was a sharp and irreconcilable disagreement over facts on which probate of Mrs. Loori’s will depended. 1 think that the testimony of the caveator and of three of his brothers and a sister, as well as that of a brother-in-law, was affected very largely by disappointment that the mother’s will made provision for but two of her children.

The testimony of the caveator, who is a physician, was to the effect that his mother had a first stroke in 1927 and at least forty thereafter which resulted in paralysis of her legs, mouth and tongue and caused destruction of brain tissue and softening of the brain; that in 1938 she suffered from mental aberration and acted in a childish and hilarious manner, such as laughing and clapping her hands when spoken to; that she mumbled her words and could not make herself understood; that she did not have the mental capacity to transact business or to handle her affairs or to know what property she possessed, and could not understand what was said to her; that about 1935 she charged her son Patrick with stealing her diamond earrings and some money and called him a crook; that in 1931 she said her son Joseph had taken her money; that some years before his father’s death, his father had said that Kepsel (who drew the will and was one of the witnesses) had tricked him and that he (his father) could not trust Kepsel.

A composite statement of the testimony of the caveator’s relatives is as follows: In 1938 the testatrix’ condition was very bad. She was forgetful, would not know where she was, would laugh and clap her hands and had lost control of her organs. She kept telling them to look after her son Anthony, about whom she always asked. She always wore her diamond earrings and they were not missed until six days before her death. In June, 1938, the testatrix visited a daughter who lived at Glen Kock, being brought there by her son Patrick who helped her from his automobile into the daughter’s home where she stayed to supper and did not return home until after dark. She visited the same daughter again in the summer of 1939 and in that 'same summer also visited another daughter who lived at Long Branch. In June, 1938, the testatrix’ mouth was paralyzed and she drooled and dribbled her food. It was difficult to talk with and understand her and many times it would take ten minutes to understand her. It was very hard to understand her but it was possible to get the gist of what she wanted to say. Three friends and neighbors testified but it is impossible to be certain to what period in the life of the testatrix they referred. Their testimony was that they could not cany on a conversation with the testatrix because of the physical impediment which affected her tongue and jaw and because saliva dribbled from her mouth and prevented speech; that she became childish and when asked a question would clap her hands and mumble. However, one of those witnesses testified that the testatrix showed great affection for all her children and said, “I love my children so much that my own husband was jealous of the affection I have for my children.”

I gather from the testimony for the caveator that in June, 1938, Mrs. Loori was an invalid but was not so physically helpless that she could not, with aid, move between her bed and her chair. In that month she was able to take automobile rides and to visit at homes of her daughters at Glen Rock and Long Branch. She could understand what was said to her, and although her speech was affected by paralysis of her mouth, tongue and jaw she could make herself understood, possibly at times with difficulty. There was nothing in that testimony which demonstrated that her mental condition in 1938 was bad, but rather to the contrary. A specialist in nervous and mental diseases, called as a witness for the caveator, examined Mrs. Loori about three weeks before her death and found her mental condition then very bad, but he declined to express an opinion whether in June, 1938, she had sufficient mental capacity to make a will.

The testimony of witnesses for the proponents shows that at the date of her will Mrs. Loori’s physical and mental condition were far better than the caveator’s witnesses would make it appear and I state a resume of the testimony of Kepsel who drew and witnessed the will and of the other witness io its execution at some length, because of the great weight which must be given to it, and .1 note that the Orphans Court judge stated in his opinion that he was satisfied Kepsel told the truth in every respect to all questions asked of him.

Julius Kepsel, a member of the bar of this state for twenty years, testified that he was a friend of the Loori family and had at one time occupied space in the same law offices with Joseph Loori and had performed various legal services for Antonio Loori, the testatrix’ husband. His story was that about a week after he had drawn Antonio Loori’s will, he called one morning at Mrs. Loori’s home and was shown to her room where he found her alone sitting in a chair. He asked her if she remembered him and she said she did and he then told her that her husband had sent him to talk with her about making a new will because the witnesses to her old will were probably dead. He asked her if she wanted to make one and upon receiving an affirmative reply he asked her if she knew what a new will was and she said, “When you die then your property goes the way it is in the paper.” He asked her what she wanted to do and she said, “Leave everything to Mr. Loori and if he dies then leave it Patsy and to Joe.” He asked her what about the other children and she said, “No, that is the way. You do it that way.” He then asked her if she was sure about it and she said, “Yes, that is the way.” He asked her if she wanted to tell him why and she said, “No that is all right,” or, as he said in another point in his testimony, “That is all right, never-mind, everything to Joe and Patsy.” He asked her whom she wanted to name as executor and when she apparently did not understand him, he repeated the question in another form and she said, “Make my husband and if he dies, make Joe.” He asked her if there were any witnesses about and she said, “No, you bring somebody.” He went to Joseph Loori’s office, which was nearby, and drew the will, Joseph not being there at the time, and he called Dominick Esposito, a friend of the Loori family, on the telephone and requested him to meet him at Mrs. Loori’s home to witness her will. He and Esposito went to Mrs. Loori’s room and found her alone. She said, “Hello, Dominick,” to Esposito. Kepsel produced the will, read it to her and asked her if that was what she wanted and she said, “Yes.” He asked her if she could write and she said, “No, I can’t hold a pen.” He asked her if - she could make her mark and when she said “Yes,” he asked her if she was sure she understood what he had read to her and she said “Yes.” He asked her if she wanted Esposito and himself to sign as witnesses and she said, “Yes,” and proceeded to sign by mark and they witnessed her signature. She then asked Esposito about his wife, who had recently died and about his little boy and wanted to know about the boy and how things were going. Kepsel asked her Avhat to do with the will and she said “Take and give it to Joe to put with the papers.” He and Esposito were with her fifteen or twenty minutes and after leaving her, Kepsel took the AAÚ11 to Joseph Loori’s office AAdlere he found Joseph" to AAdiom he gaye the will in a sealed envelope and Joseph put it in his safe. He may have told Joseph what the will provided. He further testified that Mrs. Loori had quite a bit of difficulty in expressing herself and that he talked with her an hour or an hour and a half before leaving to draw her will; that she did not speak fluently and it was an effort for her to convey her thoughts through speech and he had to Avatch her closely but she showed no signs of not understanding him; ■ that her difficulty in conveying her thoughts had no relation to her mental operation but to her physical condition, and he understood her.

. The substance of Esposito’s testimony Avas that he had known Mrs. Loori many years and was a friend of the family. About noon of the day the will was executed Kepsel called him on the telephone and requested him to act as a Avitness to the execution of Mrs. Loori’s will and Avhen they entered he]- room she recognized and spoke to him. Kepsel read the Avill to her, explained its contents and asked her if she understood it and if that was the way she wanted her will. She nodded her head and said, “Yes.” Kepsel told her she Avas providing for her husband and in case of his death. her property was to go to her two sons and asked her if she wanted to make provision for her other children and she said, “Patsy and Joe.” Kepsel asked her if she wanted him and Esposito to witness the will and she nodded her head and said, “Yes,” after which she signed by mark. They were with her about fifteen minutes, during which time she told Esposito she was glad to see him and asked about his boy' and what school he went to and told Esposito it was too bad about his wife’s death and said, “It is too had she should die so y'oung.” She was feeble and had a little difficulty in getting her thoughts together so she could talk but she carried on an intermittent conversation.

The proponents produced as other witnesses to Mrs. Loori’s mental condition, a nurse who attended her daily from and after January, 1939 (apparently Mrs. Loori had not required a nurse prior to that time), except for three months during the summer of 1939 when Mrs. Loori was visiting her daughter at Glen Bock. The nurse read to Mrs. Loori from magazines and newspapers and talked with her about a trip Mrs. Loori had taken to Europe several years previously', also about flowers, clothes and radio programs. She testified that Mrs. Loori liad difficulty in speaking but she (the nurse) understood what she said and she related in detail several conversations between them and said that Mrs. Loori was perfectly' clear in her mind. Another nurse who attended Mrs. Loori from May', 1940, until her death, testified that up to August, 1940, she had had conversations with Mrs. Loori on various subjects and although Mrs. Loori had an impediment in speech, she had little difficulty in understanding her or in making herself understood.

Two members of the bar, both of whom were acquainted with Mrs. Loori and her family', testified to two separate occasions on which they had witnessed her signature to deeds and had taken her acknowledgment, one on January 8th, 1938, and the other on October 3d, 1938. They both said that besides explaining the deeds to her and then taking her acknowledgment, they had conversations with her on other subjects and had no difficulty in making themselves understood or in understanding her. It was stipulated by counsel for the parties that the records of the Hudson County superintendent of elections show that Mrs. Loori registered as a voter in October, 1934, and voted at elections in 1934, 1936, 1937 and 1939 and that in 1937 and 1939 she voted at both primary and general elections.

I shall not refer to the testimony of Joseph and Patrick Loori that their mother’s mental capacity was normal, except to say that they testified that while there was no hesitation in her speech prior to 1938 it might have been difficult for some people to understand her thereafter but that she had no trouble in understanding what was said to her.

It may be conceded that the testatrix was not in good physical condition when she executed her will and that she had become bodily enfeebled through apoplectic strokes and that the paralysis which affected her mouth and tongue caused her to speak hesitantly and with difficulty, so that at times when she conversed with others and even with members of her family, it required patience and persistence to get an understanding of her wishes or desires. It is not unlikely that clapping of hands and what appeared to be childish actions when spoken to, were but nervous reactions to her mechanical difficulty in giving expression to her thoughts and that such difficult}' caused her to be sparing in the use of words so that when she could reply to-questions by saying “yes” or “no,” she did so without attempting the effort to use further words. The presumption of law being in favor of testamentary capacity, the burden of proof was on the caveator to show that Mrs. Loori lacked such capacity. The right of testamentary disposition is guarded most jealously by our courts and their decisions very definitely assert that such right may be exercised by a person of very moderate mental capacity. In re Triebe, 114 N. J. Eq. 227; 168 Atl. Rep. 404.

The court below did not find that Mrs. Loori lacked mental capacity to make a will—in fact after seeing the witnesses and hearing them testify, that court stated that it believed there were periods up to the time of her death when she was mentally competent to make a will, and after careful consideration of the testimony of all witnesses I do not find evidence that at the time Mrs. Loori executed her will she lacked the mental capacity necessary for the proper performance of that act, mid T cannot assume that her hodily infirmities caused or were accompanied by such mental deterioration, if any, as to render her incapable of understanding the nature of that act or to appreciate who the members of her family were and which of them she desired to favor above others in making disposition of her estate. Her husband was her first thought and although he, too, was not in good health, he was at the date of her will attending to his business affairs and, considering her physical condition, he might have been expected to outlive the testatrix. She was on friendly terms with all her children, all of whom except Joseph, Patrick and Anthony, had homes of their own and had lived away from the parental roof for years, while Joseph, Patrick and Anthony were unmarried and from their birth had resided with their mother continuously. She saw Joseph and Patrick daily and the evidence shows that they were the children who devoted more time, care and attention to her wants than did Anthony, who in her later years had merely slept at home and taken his meals elsewhere. 1 cannot substitute my opinion for that of the testatrix and say that in the disposition of her estate there could not have been perfectly natural reasons for her desire to prefer Joseph and Patrick in what may then have seemed to her to be the remote contingency that her husband would predecease her.

In considering the question of undue influence it may be conceded that a relation of trust and confidence existed between the testatrix and her sons Joseph and Patrick; that residing in the same house with her and seeing her daily, they were in a position to influence her as to the terms of her will, but those facts standing alone are insufficient to raise a presumption of undue influencie. There is no evidence that either of them endeavored to induce their mother to make a will, or initiated the. steps leading up to its execution, or participated in its preparation, or were present when the will was executed, or that they had made any attempt to prejudice their mother against her other children. The burden of proof to show undue influence was on the caveator iii the first instance ancl until some fact or circumstance was shown from which it could be inferred that the mind of the testatrix, Avas dominated by Joseph or Patrick, or by some one acting in their behalf, the burden of proof to show that there was no imposition on the mind .of the testatrix was not shifted to Joseph or Patrick. In re Tenenbaum, 118 N. J. Eq. 405; 179 Atl. Rep. 273; affirmed, 119 N. J. Eq. 488; 182 Atl. Rep. 632, and cases cited. It is my opinion that no such fact or circumstance was shoAvn, but even if the burden of proof Avas on Joseph or Patrick to sIioav that they had not influenced or attempted to influence their mother’s mind in the making of her will, they sustained such burden.

At one time Kepsel had been associated Avith Joseph Loori for several years, in that they had occupied the same suite of law offices, but six years prior to the execution of the will Kepsel had moved to another community. Notwithstanding that he and Joseph were friends, Kepsel appears to have been a disinterested scrivener of the will, chosen by Antonio Loori by chance to call on his Avife for the purpose. I do not believe the testimony on behalf of the caveator that Antonio Loori and his wife were not then on speaking terms —on the contrary I believe the testimony of disinterested witnesses that they conversed and took meals together and there is the fact that he had made his will in her favor. At that time Antonio Loori was the dominant member of his household and it is quite conceivable that after he had executed his OAvn will, he told his wife that Kepsel was to call on her about the preparation of her will and therefore, so far as the testimony discloses, she showed no surprise at his call but Avas evidently expecting him. Kepsel testified that he had made no appointment to call on her at any definite time and that neither Joseph nor Patrick knew Avhat day he intended to see her. Between the day he had been instructed to call on her and the day he called, he had had no conversation with Joseph or Patrick and neither of them had made any suggestion to him as to what their mother’s will should contain. He had not been told by Antonio Loori what testamentary disposition he Avanted his wife to make and when he saw Mrs. Loori alone and talked with her for an hour or an hour and a half, he did not suggest to her how she should make her will but took instructions from her after he had asked her what she wanted to do. Between the time he left her to draw her will and the time she executed it, he did not see J oseph or Patrick but after the will was executed he gave it to Joseph and told him what it contained. The testimony of Joseph and Patrick that they had never exerted or asked anv one to exert influence on their mother concerning the disposition of her property; that they had no conversation with her about making or having made a will and that they had nothing whatever to do with its preparation, stands uncontradicted and Patrick testified he did not know until after her death that she had made a will.

The appeal is also from the allowances made by the Orphans Court decree for counsel fees to the respective parties. The statute (11. 8. 2:2-8J; N. J. S. A. 3:2-81) provides that in causes respecting the probate of a will, if probate be refused the court may order the costs and expenses of the litigation paid either by the proponent or out of the estate of the decedent. I assume that proctor for the proponents made application to the Orphans Court for an allowance. Notwithstanding that he there represented unsuccessful parties on whom the court might have imposed the costs of the litigation, his application was granted presumably because the court was of the opinion that the proponents had a right to a full hearing on a will which' on its face appeared to have been executed in due form and also because the testimony of the witnesses to its execution disclosed that it had been executed according to statutory requirements. Having granted counsel fee to the unsuccessful proponents, an allowance would naturally be made to the caveator, especially since the court was of the opinion that probate should not be granted. The court had knowledge nf the conduct of the hearing , and of course knew that a trial which extended over six days required some preliminary work on the part of proctors for the proponents and caveator, and the court also knew from the testimony before it that an estate of approximately $50,000 was involved and on those facts based the allowances. T think allowances were properly made to both proctors and although I consider those made were most liberal, I am not willing to say that they were so extravagantly liberal that they should be set aside or reduced.

The decree of the Orphans Court will be reversed in so far as it denies probate to Mrs. Loori’s will and the record will be remitted to that court with directions to admit the will to probate and to issue letters testamentary thereon to the surviving executor therein named.


source: Caselaw Access Project

author: Fulop, D. C. J.

license: Public Domain

text:
    District Court for the Second Judicial District of the County of Union.
    SARAH LEVINE, PLAINTIFF, v. IRWIN KARKUS, DEFENDANT.
    Decided September 17, 1942.
    For the plaintiff, Peter Kay.

    For the defendant, 7'tiugene A. Lioita.

   Fulop, D. C. J.

This is a proceeding to dispossess a tenant from premises known as 1610 Summit Avenue, Hillside, New Jersey. The affidavit of the landlord sets out a tenancy from July 1st, 1941, to August 31st, 1942. It further alleges “that on the 21st day of July, 1942, this deponent personally made demand and caused written notice to be served upon said Irwin Karkus * * * a. true copy of which notice” is annexed to the affidavit. The affidavit also alleges that the tenant has not quit the premises and holds over without the permission of the landlord. The notice annexed to the affidavit is addressed to the tenant and signed by the landlord, and reads as follows;

“In accordance with the terms of the lease executed by you as tenant and myself, as landlord, for the leasing of five rooms and sun-parlor on the first floor and garage at 1610 Summit Avenue, Hillside, New Jersey, you are hereby notified to quit the aforementioned premises and to deliver possession thereof to me on the expiration date of said lease, to wit, August 31st, 1942.”

Counsel for the tenant moves to dismiss the proceedings upon the ground that the foregoing affidavit is insufficient to confer jurisdiction upon this court in that there is no allegation of a demand and notice of demand for possession given after the expiration of the term. The contention is that the notice given on July 22d, 1942, was only sufficient to terminate the tenancy and that a second demand should have been made and notice given after August 31st, 1942, in order to confer jurisdiction on the court.

The relevant statute is B. 8. 2:32-265a; N. J. S. A. 2 :32-265a:

“Except as limited by section 2 :8-39 of this title as to actions brought to recover possession of premises used for dwelling purposes, any lessee or tenant at Avill or at sufferenee, or for a part of a year, or for one or more years, of any houses, lands or tenements, and the assigns, under tenants or legal representative of such tenant or lessee, may be removed from such premises by any district court of any city or judicial district within the limits of the county within Avhich such premises are situated, in the manner hereinafter prescribed in the following cases: ■
“a. Where such person holds over and continues in possession of all or any part of the demised premises after the expiration of his term, and after demand made and written notice given by the landlord or his agent, for delivery of possession thereof, which notice shall be served either personally upon the tenant or such person in possession by giving him a copy thereof or by leaAdng a copy of the same at his usual place of abode with a member of his family above the age of fourteen years, or where for any reason such service cannot be had, then the same may be served by posting or affixing a copy thereof upon the door or other conspicuous part of such dwelling or demised premises occupied by the tenant;”

Defendant relies upon Perth Amboy Iron and Metal Co. v. Herman Ellis (1923), 1 N. J. Mis. R. 154, in which Mr. Justice Bergen held that there is a: “distinction between a notice to quit and the statutory demand for possession which is necessary to give the District Court jurisdiction to dispossess a tenant who is a mere holder over. * * * No such demand was proven and could not be under the affidavit on which this judgment is based. The District Court had no jurisdiction for want of a proper affidavit.”

it will be noted that the affidavit dealt with by Mr. Justine Bergen contained no allegation that a demand and notice for possession had been given by the landlord at any time. The case is not controlling.

In the case of Quidort v. Bullitt (1897), 60 N. J. L. 119; 36 Atl. Rep. 881, Mr. Justice (later Chief Justice) Gum-mere writing the opinion for the Supreme Court composed of Mr. Justices Depue, Magie and Gummere, decided the precise point here under consideration in favor of the sufficiency of a demand for premises made prior to the expiration of the tenant’s term. The court held:

“It is also contended, on behalf of the prosecutor, that the justice was without jurisdiction because no notice to quit was served upon the prosecutor after the expiration of his term, in compliance with the first clause of the eleventh section of the Landlord and Tenant Act. The notice which was served upon the prosecutor, terminating the lease, also contained a notice to deliver up the possession of the premises at the expiration of the term.
“It was not therefore necessary to serve a second noticie and demand after the termination of the tenancy, in order to give the justice jurisdiction.”

That case was decided under the Landlord and Tenant Act as it was in effect in 1896. In the revision of 1877 at page 576 and in the General Statutes of 1895 at page 1922, the equivalent of R. S. 2:32-265a; N. J. S. A. 2:32-265a appears as follows:

“Where such person shall hold over and continue in possessor of the demised premises, or any part thereof, after the expiration of his or her term, and after demand made, and notice in writing, given for delivering the possession thereof by the landlord, or his agent for that purpose.”

A careful comparison of the present provision of the District Court Act first above given and the last quoted provision of the Landlord and Tenant Act, which governed justices of the peace in 1896-1897, when the Quidort case was decided, reveals no material difference in the respect now under consideration. Therefore, the case of Quidort v. Bullitt, supra, is dispositive of the present motion.

Aside from authority, reasoning leads to the same conclusion. The statute does not say that the demand for possession must be made after the expiration of the term of the tenancy. The words “after the expiration of his term” and “after demand made and written notice given by the landlord” are connected by the word “and.” They are co-ordinate phrases.

The mere fact that the reference to the notice follows the reference to the expiration of the term is of no significance. At most, it may be said that the legislation is badly punctuated and therefore tends to be ambiguous. If the statute is ambiguous, the construction must be governed by the intent of the legislature. The only possible purpose for requiring a demand and written notice is to apprise the tenant that the landlord desires possession at the expiration of the term. That result is far more effectively, achieved by a demand made and notice given one month in advance of the expiration of the term than by a much shorter notice given after the expiration of the term. Nor is the tenant entitled to an extension of his tenancy by an additional notice period after the expiration.

. The motion to dismiss the proceedings is therefore denied. It should be noted that counsel for the tenant expressly confined himself to the above mentioned ground for his motion, and no other matters have been considered.


text:
    New Jersey Department of Labor. Workmen’s Compensation Bureau.
    JOSEPH STEVENS, PETITIONER, v. BUTTON CORP. OF AMERICA, AND NEW JERSEY MANUFACTURERS CASUALTY INSURANCE CO., RESPONDENTS.
    Decided September 25, 1942.
    For the petitioner, David Boskein (Mortimer Wald, of counsel).
    For the respondents, George B. Meredith.

   From the pleadings and the testimony adduced the petitioner can recover on only one of two theories, that he met with an accident arising out of and in the course of his employment, or that he suffered a compensable occupational disease as defined in B. 8. 34:15-31; N. J. S. A. 34:15-31. The latter theory J do not discuss because there is no suggestion in the evidence that the petitioner suffered a compensable occupational disease.

The testimony is undisputed and indicates that the petitioner in the course of his work was required to dump baskets of buttons which had been immersed in a tank filled with a liquid. In the process of dumping the basket filled with wet buttons the liquid got on petitioner’s arms and legs. This was a continuous process, and the petitioner was exposed to this soaking of his body and his clothes from 7 :30 A. M. to 12 :00 A. jvi. daily.

Tt further appears that after doing this work for about a month the petitioner noticed that he had a rash on his arms and. on his legs. He testified that he sought medical treatment, and then was away from work for a period of time because of a strike. During this interval the rash seemed to improve, but on resuming his work at the end of the strike the condition broke out all over again. '

The petitioner called Dr. Leon Lewis, who testified that he' examined the petitioner and found that he was suffering from a fungus infection of the upper sternum with sealing areas and crustlike scars over the legs. His diagnosis of the case was dermatitis venenata and a sensitivity due to exposure to formaldehyde. The doctor testified that in his opinion this condition could not be brought about by one contact, but was the result of continuous exposure to the liquid.

• No further testimony was adduced and the respondent by its attorney moved for a dismissal of the petition on the ■ground that' the petitioner did not sustain the burden of proving that he suffers from a compensable occupational disease or a condition resulting from an accidental injury . arising out of and in the course of employment.

I am satisfied from the evidence that the condition from which the petitioner suffered was not the result of the splashing of the liquid, but was probably due to the constant contact of the solution which he experienced over the entire period of his employment. The testimony indicates that the petitioner suffers from a dermatitis probably due to an allergy or sensitivity to the solution in which the petitioner worked.

There is no claim that the petitioner suffers a compensable occupational disease. I am, therefore, called upon to determine whether the condition from which the petitioner suffered is the result of an accidental injury while at work.

After a careful consideration of all of the evidence, I am constrained to find that the petitioner has failed to sustain the burden of proving that .he met with an accident arising out of and in the course of his employment. The facts of this case appear to be controlled by the opinion of our Supreme Court in the case of Liondale Bleach, Dye and Paint Works v. Riker, 85 N. J. L. 466; 89 Atl. Rep. 929. In that case the petitioner was required to work in acids, and after ten days’ service in this employment broke out in a rash which was described as an eczema. The court there held that in the absence of a specific occurrence to account for the condition, there could be no finding in favor of the petitioner because he had not established the fact that he had suffered an injury by accident.

Furthermore, this rule of law has been followed quite recently by Deputy Commissioner Wegner in the case of Clarence H. Van Orden v. Dare’s Flowers, Inc., 20 N. J. Mis. R. 24; 23 Atl. Rep. (2d) 387. In that case the petitioner worked in a nursery and developed a skin rash which the medical witnesses characterized as a dermatitis. The court there held that, although the petitioner’s condition may have been the result of his occupation, it was not the result of an accident “even in the liberal interpretation of the term and does not involve accidental injury.”

While I may personally believe that a case of this kind should be held compensable, nevertheless, -if the legislature in its wisdom does not see fit to include such a condition, I cannot do so. I am unable to read something into the law which does not exist. The strength of the law is in its enforcement, and this court does not feel that it can by judicial interpretation read into the act something that was not intended by the legislature.

In view of the foregoing the motion of the respondent is granted and it is, therefore, * * * ordered that the petition be and the same is hereby' dismissed, without cost to either party.

Harry S. Medí nets,

Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    WILLIAM H. COMINGS, PETITIONER, v. FRANK H. COMINGS ESTATE, RESPONDENT.
    Decided July 10, 1942.
    For the petitioner, Morris Downing (Willis II. Sherred, of counsel).
    For the respondent, Wilbur A. Stevens (Charles Shenier, of counsel).
   The sole question in dispute is whether or not petitioner was an employee as defined by the Workmen’s Compensation Act and thereby entitled to its benefit.

The respondent, designated as William H. Comings administrator of the estate of Frank H. Comings, deny such a relationship.

There is no dispute as to the facts and it was stipulated as to the accident and notice.

The petitioner, a farm hand, was employed by his father for a number of years as a farm hand at a salary of $50 per month, room and board. Due to his father’s illness for a number of years prior to May, 1941, when he died, the petitioner had sole supervision and the management of the farm.

The father died intestate leaving a widow, a daughter and a son, the petitioner.

By agreement of the widow and the daughter, the petitioner was granted letters of administration by the surrogate of Sussex County. It was further agreed by the interested parties that the petitioner would manage the farm as heretofore.

In accordance with this agreement, petitioner carried out the duties of his vocation, in the handling of moneys or any income from the farm, he kept separate books and bank accounts. One account being in his name as administrator and the other a personal account in which he deposited his personal funds.

On July 21th, 1941, he met with an accident while engaged in his regular duties.

Was petitioner an employee ?

An employee under the act and the decisions is one “synonymous with servant.” In order for the relationship to exist there must be a valid contract of service together with the right or power in the employer to control the employee with respect to the transaction out of which the injury arose.

R. S. 3:31-1; N. J. S. A. 3:31-1—Dower: estate of, provides that the widow of a person dying intestate or otherwise shall be endowed, for the term of her natural life, of the one full and equal half part of all real estate whereof her husband was seized.

Prior to December 31st, 1928, the dower right was one-third.

Regardless of the widow’s dower interest, the son and daughter take the balance as tenants in common, each entitled to an equal one-half of the remainder.

As administrator, the petitioner is not entitled to compensation as an “employee.” He is not an employee of the beneficiaries of the estate.

As a co-tenant in common, no master servant relationship is established. Aside from any agreement, one co-tenant is not permitted to derive profit from the tenancy without sharing it with his co-tenants. The mere fact that this is confirmed by oral agreement does not constitute him an “employe” of the others in absence of the agreement so providing and changing the relationship of co-tenant to master and servant.

I am, therefore, holding that the petitioner was not an employee as defined by the act.

John C. Wegnek,

Deputy Commissioner.


author: Quinn, President.

text:
    State Board of Tax Appeals.
    WEST RIDGELAWN CEMETERY, PETITIONER, v. CITY OF CLIFTON, RESPONDENT.
    Decided May 19, 1942.
    For the petitioner, Louis A. Fast.

    For the respondent, John J. Dluh.y.

   Quinn, President.

These are appeals from judgments of the Passaic County Board of Taxation, dismissing applications for exemption from taxation of certain lands and improvements alleged to constitute non-taxable cemetery property. The property in question was duly assessed for taxation for the year 1940 by the City of Clifton, as four separate parcels. For the sake of a clear understanding of the questions presented, it is necessary briefly to review some of the recent history of the petitioner and to refer to the tax1 appeals prosecuted by it from assessments for the year 1938, upon two of the four parcels here in question.

' As of October 1st, 1937, petitioner held legal title to certain acreage northwesterly and southwesterly of Dwas Line Load and east of Allwood Road, in Clifton. The property southeast of Dwas Line Road consisted of two tracts, one being fourteen and one-half acres and the other three and one-half acres in area. The larger of these tracts, bounded on three sides by Dwas Line Road, Allwood Road and Passaic Avenue, is designated as Block 281, Plot 30, 30 Passaic Avenue; the smaller, as Block 281, Plot 30A, 30A Passaic Avenue. Upon Block 281, Plot 30, was situated a frame and stucco cemetery office. Northwest of Dwas Line Road, as of the date stated, petitioner owned a tract of approximately sixty-four acres, forty-one of which constituted an integral parcel known as King Solomon Cemetery, assessed for taxation as Block 270, Plot 25, 25 Dwas Line Road, the remaining twenty-three acres being undeveloped woodland, assessed as Block 270, Plot 25A, 25A Allwood Road. On July 14th, 1939, under circumstances hereinafter related, the petitioner acquired title to twenty acres of land on Allwood Road northerly of King Solomon Cemetery and southwesterly of Block 270, Plot 25A. That tract is assessed as Block 270, Plot 1, Allwood Road. These properties, excepting Block 281, Plot 30A, are the four parcels under appeal in the present proceedings. The 1938 case involved only Block 281, Plot 30, Block 281, Plot 30A and Block 270, Plot 25. The assessment upon Block 270, Plot 25A was uncontested in that year, the property having been conceded to constitute .undeveloped woodland on October 1st, 1937.

The proofs made before us in the 1938 case are fully detailed in the opinion of the board. West Ridgelawn Cemetery v. City of Clifton, New Jersey Tax Reports, 1934-1939, p. 775. It there appeared that by order of the Court of Chancery in January, 1936, the receiver of the petitioner had contracted to sell the eighteen acres comprised of Block 281, Plots 30 and 30A, and that the holder of the contract, on October 1st, 1937, was Cresthaven Cemetery Association, Inc., a business corporation. It was therefore held, under the authority of Mausoleum Builders of New Jersey v. State Board, 88 N. J. L. 592; 96 Atl. Rep. 494 (Supreme Court, 1916); affirmed, 90 N. J. L. 163; 100 Atl. Rep. 236 (Court of Errors and Appeals, 1917), that there was no right of exemption, the statutory exemption of “cemeteries and buildings for cemetery use erected thereon,” under R. S. 54:4-3.9; N. J. S. A. 54:4-3.9, not applying to property equitably owned and actually operated for commercial purposes by a business corporation. As to Block 270, Plot 25, the 1938 assessment was set aside, full and unfettered title thereto remaining in West Ridgelawn Cemetery on October 1st, 1937, and all of the property being shown to be actually used as a cemetery, or within reasonable contemplation therefor. R. 8. 54:4-3.9; 8:2-27; N. J. S. A. 54:4-3.9; 8:2-27; West Ridgelawn Cemetery v. City of Clifton, 109 N. J. L. 146; 160 Atl. Rep. 534 (Court of Errors and Appeals, 1932).

The ruling of the board as to the parcel held taxable was affirmed upon certiorari by the Supreme Court, that tribunal considering both the record before the board and additional proofs taken by deposition. West Ridgelawn Cemetery v. State Board of Tax Appeals, 124 N. J. L. 284; 11 Atl. Rep. (2d) 593 (Supreme Court, 1940); affirmed, 125 N. J. L. 274; 15 Atl. Rep. (2d) 595 (Court of Errors and Appeals, 1940). We proceed to consider the situation obtaining as of October 1st, 1939, assessing date for the year now in question, as to each of the parcels under appeal.

1. Block 281, Plot 30, 30 Passaic Avenue. The proofs before us demonstrate that the equitable ownership of this property by the Cresthaven business corporation, which was responsible for the loss of exemption for the year 1938, did not exist upon October 1st, 1939. On June 20th, 1938, all of the right, title and interest of the Cresthaven business corporation was transferred and assigned to Cresthaven Cemetery Association, duly incorporated under the act for the organization of rural cemetery associations. The proof is clear and unrebutted that the assignee not only retained the equitable interest thus assigned but was actively in control of this parcel as of the assessing date. Respondent’s attack upon the claim for exemption as to this parcel is based only upon suspicion and surmise. It points out, for example, that no reference was made on behalf of petitioner to the assignment to the rural cemetery association, either at the hearing before this board in the 1938 case, or upon the depositions taken on certiorari, although both took place subsequent to the date of the assignment. The short answer to this observation is that the assignment took place subsequent to October 1st, 1937, and any reference to it in the 1938 case would therefore have been incompetent. We are not justified in ignoring the prima facie sufficient proof of the succession to the interest of the Cresthaven business corporation, by the rural cemetery association, in the absence of any testimony disproving, the subsistence and bona fides thereof. This parcel was thus a cemetery of a cemetery association (whether regarded as owned by West Ridgelawn Cemetery, repository of the legal title, or by Cresthaven Cemetery Association, a rural cemetery association, holder of the equitable title by contract of purchase), and being thus exempt from .taxation under both B. S. 54:4-3.9 and 8:2-27; N. J. S. A. 54:4-3.9 and 8:2-27, it was improperly assessed for taxation for the year 1940. . .

2. Bloclc 270, Lot 25, 25 Divas Line Boad. It will be recalled that this parcel was held exempt for the. year 1938, not being included in the order of the Court of Chancery of January, 1936, contracting to sell certain other property of the petitioner to the assignor of Cresthaven, the business corporation. On October 29th, 1938, however, by an order of that court, the receiver of petitioner was authorized and directed, in effect, to sell its remaining unsold cemetery lands to Cresthaven Cemetery Association, Inc., for the sum of $85,000, payable within seven years. Shortly thereafter, on November 9th, 1938, Cresthaven Cemetery Association, Inc., assigned all of its right, title and interest in and.' to the property under said order, to Cresthaven Cemetery Associa^ tion, the rural cemetery association hereinabove referred to. On behalf of petitioner, it is categorically testified, that it was the rural cemetery association which took over possession of this parcel and that said association was conducting the operation of the cemetery situate thereon on October 1st, 1939. No contradiction or rebuttal of this proof is made by. the respondent and we are therefore constrained to accept it at its face value. It results that this parcel, like Block 281, Plot 30, was a cemeterjr of a cemetery association and entitled to exemption from taxation under the statute hereinabove referred to.

3. Block 270, Blot 25A, 25vi Allwood Road. This parcel of property was not involved in the 1938 appeal. As of the assessing date for that-year it consisted of undeveloped woodland, although scattered burials in isolated parts thereof had been made from time to time in the past. Paragraph 15 of the order of the court, dated January 28th, 1938, granted to Crestliaven Cemetery Association, Inc., the right “to sell for the Receiver of West Ridgelawn Cemetery twenty-three acres of the most westerly part of the cemetery premises” (the parcel here in question), and paragraph 16 of the order provides that sale of the said twenty-three acres should be upon the same terms and conditions as were set forth thereinabove with reference to the main tract sold. The assignment from Crestliaven Cemetery Association, Inc., to Crest-haven Cemetery Association, a rural cemetery association, dated November 9th, 1938, being all inclusive, had the intent and effect of transferring to the rural cemetery association the equitable title to this parcel. The evidence is quite clear that, as of the assessing date, clearing of the woodland on the property had been commenced and was still under way, that the property had been fully mapped and plotted, that rudimentary roads had been put in and some grading done, and that all of this work was clearly designed for the imminent purpose of using this property for cemetery purposes. If lands are “within reasonable contemplation for cemetery purposes” and are owned by a cemetery association, the right of exemption is established. West Ridgelawn Cemetery v. Clifton, 109 N. J. L. 146; 160 Atl. Rep. 534 (Court of Errors and Appeals, 1942); Hoboken v. North Bergen, 43 N. J. L. 146 (Supreme Court, 1881); Gottlieb v. West Ridgelawn Cemetery, 109 N. J. Eq. 585; 158 Atl. Rep. 422 (Court of Errors and Appeals, 1931); Harleigh Cemetery Association v. Camden, New Jersey Tax Reports, 1912-1934, p. 22. Tinder this rule, Cresthaven Cemetery Association, the rural cemetery association, was entitled to exemption on account of this property and this right is not affected by the retention of the bare legal title by the West Ridgelawn Cemetery.

4. Bloch 270, Plot 1, Allwood Road. As noted above, this property, formerly belonging to Elizabeth Lockwood, was acquired by petitioner July 14th, 1939, prior to which time it was swamp and woodland. The acquisition of this property by West Ridgelawn was under and by virtue of the terms of the order of the Court of Chancery, dated January 28th, 1938, looking to the extension and rounding out of the existing boundary lines of the cemetery. The assignment to Crest-haven Cemetery Association, the rural cemetery association, dated November 9th, 1938, of course transfers to that association any right which Cresthaven Cemetery Association, Inc., had prior thereto, under the terms of the order of the court. There is no doubt about the fact that this property was being cleared and prepared for cemetery use on October 1st, 1939. The proofs are that this work had reached a point where a road had been actually laid out, the entire tract planned and mapped and beautification of the premises commenced prior to the assessing date. Since then the developing has reached such a point that the City of Clifton, which conceives the use of this parcel for cemetery purposes to be improper as a matter of law, has filed its bill in the Court of Chancery for an injunction. We of course have no concern. with the subject-matter of that suit but we refer to same merely to indicate that the lands were clearly contemplated for cemetery-purposes as of the assessing date and that therefore, under the cases cited hereinabove, the right to exemption must be found to exist, to the extent that any issue is raised concerning the reasonable contemplation of use of such property for cemetery purposes on the assessing date.

For the foregoing reasons the judgment of the Passaic County Board of Taxation is reversed and the assessments on .all of the parcels of property in question are canceled.

Judgment accordingly.


text:
    New Jersey Department of Labor, Workmen's Compensation Bureau.
    ANNA BROWN, PETITIONER, v. BRANN & STUART COMPANY AND TRAVELERS INSURANCE CO., RESPONDENT.
    Decided August 10, 1942.
    For the petitioner, David Roskeiu.

    For the respondent, Warren A. Sprout, Jr. (by William J. Weliky).

   The primary issues presented for determination are (1) whether or not the petitioner’s decedent’s death bore a causal relationship to an accident which arose out of and in the course of his employment with the respondent, and (2) did the respondent hare due notice or knowledge thereof as contemplated by the act (R. S. 34:15-17; N. J. S. A. 34:15-17). The other factors such as -dependency and wages do not appear to he seriously in issue.

A summary of the facts, as disclosed by the evidence, will he helpful in the resolution of the basic questions involved in this litigation. Joseph Brown, the petitioner’s decedent, was a man forty-four years of age who had entered the employ of the respondent as a laborer on April 18th, 1941. He had been in apparent good health so far as outward appearances were concerned, although he was subject prior to the occurrence in question, to occasional periods of indigestion. From these he obtained relief by taking bicarbonate of soda. With this. exception, an operation for a hernia some six years previously and an industrial accident to a toe, the decedent had had no previous occasion to secure the services of a physician, and outwardly at least appeared in sound health. Hor did he exhibit by complaint or otherwise any signs of a physical infirmity. The testimony of one, John Frederick, a dock builder, who performed his work in close proximity to the decedent, described, in considerable detail the nature of the work in which the decedent was engaged. That it was fairly laborious is undisputed. The decedent was required to perform part of his duties while standing in hip boots within a pit, the bottom of which contained muck and mud and was described by the witness as being like quicksand. In addition to wielding a pick and shovel, the decedent was required to shift and move large wooden butts or piles which weighed upwards of 600 pounds each, fasten a cable or rope about same, and while two fellow laborers pulled the object from an earthen embankment above, the decedent would lift and then push the heavy object while standing knee deep in mud with little or no leverage available to him. These piles had been cut off by the dock builders in connection with the concrete pouring activities incident to the construction job in which the men were engaged. The removal of the piles in the manner thus described was repeated by the decedent and his two fellow laborers as often as the work required. This type of work was described as being very strenuous and in fact one'of the witnesses referred to it as “a terrible job” and “brutal.”

During the first day of his employment (Friday) the decedent performed the foregoing duties in what was evidently a satisfactory manner. There was no work on Saturday or Sunday and on Monday, April- 21st, 1941, he reported for work in his usual state of health and during that day resumed the laboring activities above described. In the early afternoon about 2:30 o’clock while he was within the pit knee deep in mud, engaged in these activities, he complained to Fredericks that he had a pain in his side from lifting the piles. He was advised to take it easy thereafter and some of the other laborers assisted him for the remainder of the after-moon. About 4:30 o’clock, while on the way home, he again complained to Fredericks of pain and indicated the right side of his abdomen as the site of his discomfort. Upon reaching his home he appeared to be shaky, ill and complained of pain in his abdomen. It was of such severity that he was unable to lie in bed and according to his daughter, Jeanette, he paced the floor in evident pain, appeared to be very ill with perspiration standing out on his forehead. She also testified that he was very muddy and dirty and exhibited in addition to great pain, considerable nervousness, alternately resting and then walking about the house unable to find comfort in either activity. The decedent died on April 23d, 1941, after two days and nights of excruciating pain, during which he was unable to recline on a bed but sat on a chair.

Dr. George J. Kohut was summoned to the decedent’s home that evening and found him complaining of severe abdominal pain and in obvious distress. Upon examination, which the doctor found it difficult to make, because the pain did not permit the petitioner to lie down, this physician found a boardlike rigidity of the abdomen, tenderness of the liver was obliterated, temperature was very much above normal, the pulse a little rapid and a complaint of terrific pain. Dr. Kohut made a diagnosis of a ruptured peptic ulcer and advised hospitalization and surgical intervention since he believed tlie patient’s condition to be acute. This physician was of the opinion that the strain and effort incident to the lifting by the decedent of the heavy piles under the circumstances of his employment, caused an intra abdominal pressure which ruptured what unquestionably was a pre-existing peptic ulcer and resulted in his death.

The petitioner also produced Dr. Irving Applebaum, certified by the American Society of Internal Medicine as a specialist in that field and who is connected with the staffs of numerous hospitals in our state as well as a member of the faculty of Bellevue Hospital. Basing his opinion upon a hypothetical question which embodied all of the essential facts exhibited in this case, it was the doctor’s opinion that the effort employed by the decedent in his work precipitated a rupture of the viscus which lead to a generalized peritonitis and death. He gave it as his opinion that the work and effort required of the petitioner in his employment resulted in an increase in the intraperitoneal pressure which in turn caused a rupture of the viscus. In view of the facts presented, Dr. Applebaum wras of the opinion that the patient at the time he first complained of pain while working about 2:30 o’clock in the afternoon, suffered a subacute perforation which -was accompanied by some leakage and as the lesion progressed, a peritoneal pressure was created which terminated in death.

The respondent produced no medical witnesses but relied upon the testimony of numerous -witnesses, including Thomas Damasco the foreman, Severt Jensen and Charles Jabor, employees. There also testified Warren A. Sprout, Jr., the attorney of record for the respondent who is associated with the Travelers Insurance Co., the compensation carrier covering the respondent. The testimony of the lay -witnesses was in the main directed to the point that they observed no accident or had any knowledge thereof. The testimony of Damasco has little probative force in that there is a definite element of doubt in his ability to identify the decedent. The fact that this witness was obliged to hire large numbers of men for defense work adequately accounts for his lack of identification. Jensen’s testimony in my opinion is completely neutralized by reason of the divergence of his testimony as given in court from the statement which he gave to the insurance company representative, Mr. Sprout. This witness conceded, however, that while still in the employ of the respondent shortly following the death of Joseph Brown he obtained the death certificate in this case from the undertaker and delivered same to the office of the respondent. í‘ <¡! í¡!

There is no doubt in my mind that the decedent was required to engage in strenuous physical activities under difficult and adverse conditions while assisting in the lifting of the piles which' weighed upwards of 600 pounds. It was in the course of the performance of this very work that he first complained of pain which became progressively acute and intense and necessitated the attendance of a physician before the day was over. The proofs adduced by the petitioner, both lay and medical, are satisfactory and convincing that the strenuous physical activities of the decedent necessitated and resulted in intra abdominal pressure while endeavoring to lift the heavy objects from the mud and muck. While 1 am satisfied that he possessed a pre-existing peptic ulcer the testimony satisfies me that this condition prior to May 13th, 1941, was non-disabling and without manifesting any disabling symptoms. No extended citation of authority is necessary in support of the well established rule that where trauma or effort superimposed upon an underlying or preexisting condition results in either a rupture or aggravation of that condition, an accident is performed. Holzworth v. Hedden Iron Construction Co., 1 N. J. Mis. R. 381; Bernstein Furniture Co. v. Kelly, 115 N. J. L. 500; 180 Atl. Rep. 832. This phase of the litigation involved has recently received the consideration of our appellate courts in Molnar v. American Smelting and Refining Co., 128 N. J. L. 11; 24 Atl. Rep. (2d) 392; Ciecwirz v. Public Service Electric and Gas Co., 128 N. J. L. 16; 24 Atl. Rep. (2d) 394; Passafiume v. H. T. Heinz, Inc., 128 N. J. L. 27; 24 Atl. Rep. (2d) 394. In the foregoing cases the principals enunciated in the earlier decisions have been reaffirmed and it is now established beyond question that a compensable accident is made out upon a showing that there exists a causal relationship between the stress, strain and exertion occasioned by the decedent’s work and his ensuing death. This particularly where there existed an underlying disease or weakened pathological condition. Nor is the degree of exertion of any consequence so long as it is shown that the strain or effort required by the employment was the constructive factor in the breakdown of the undertying condition. Nor are adjudications of found cases not unlike the one at bar where compensation has been allowed for the disability or death resulting from ruptured ulcers. Hickey v. Hoffman Beverage, 19 N. J. Mis. R. 516; 21 Atl. Rep. (2d) 632.

Becognizing, as our cases do, that reasonable probability and not absolute medical certainty is the test to be applied in compensation eases, Jackson v. Delaware, Lackawanna and Western Railroad Co., 111 N. J. L. 487; 170 Atl. Rep. 22, and all that, is required for the petitioner to prevail is that the claimed conclusion from the offered facts be a probable or more probable hj^pothesis with reference to the possibility of other hypotheses, Belyus v. Wilkinson Gaddis Co., 115 N. J. L. 43; 178 Atl. Rep. 181; affirmed, 116 N. J. L. 92; 182 Atl. Rep. 873, I am satisfied that the petitioner’s evidence in the instant case more than meets the burden of proof which is hers. My careful consideration of the proofs adduced, and all probable inferences deducible therefrom, convinces me and I find that the petitioner has properly' established factually and legally that her decedent met with an accident on April 18th, 1941, which arose out of and in the course of his employment with the respondent, that his death shortly thereafter was causally related thereto and that she is entitled to compensation in accordance with the statute.

We next proceed to examine the merits of the second point raised by the respondent, to wit: that the respondent did not have requisite knowledge or notice as contemplated by the statute, R. S. 34:15-17; N. J. S. A. 34:15-17. The evidence is undisputed that on April 25th, 1941, within two days after the death of the employee, an attorney of the Travelers Insurance Co., the compensation insurance carrier of the respondent employer, together with two other investigators, were assigned to and investigated the death of Joseph Brown. They not only interviewed the employees of the respondent who were working with the decedent at the time of the alleged accident at the employer’s premises and in the presence of representatives of the respondent Brann & Stuart Co., but- also obtained signed statements from them with respect thereto. In addition, shortly thereafter, one Jensen, an employee of the respondent, obtained from the undertaker a death certificate and delivered it to the respondent. Bepresentatives of the respondent attended the funeral of the decedent, turned over his accrued wages to the widow, and obtained from her a return of his employment badge. All this within a week or so following the accident and death. The design and purpose of notice as required by the statute li. 8. 34:15-11; N. J. S. A. 34:15-11 is to give the employer the benefit of a timely investigation of the circumstances attending the alleged accident or death. Hercules Powder Co. v. Nieratko, 113 N. J. L. 195; 173 Atl. Rep. 606. In view of the foregoing activities of the respondent or its carrier, it is obvious that more than ample opportunity was afforded for a timely investigation which was conducted by persons privy to the employer who were expert and adept at this type of work. First-hand knowledge by the respondent is not required under the adjudicated cases. The state is satisfied if the employer is in possession of what is called “knowledge in common parlance, such knowledge as most of us are confined to in the daily affairs of life.” Gamon Meter Co. v. Sims, 114 N. J. L. 590; 178 Atl. Rep. 92; Hercules v. Nieratko, supra; Allen v. City of Millville, 87 N. J. L. 356; 95 Atl. Rep. 130; affirmed, 88 N. J. L. 693; 96 Atl. Rep. 1101; Farrel v. Ferry Hat Co., 10 N. J. Mis. R. 319; 159 Atl. Rep. 153, 154. From a careful consideration of all the testimony adduced directed to this point, I have reached the conclusion and find that the respondent and its carrier not only obtained knowledge within ninety days of the date of the occurrence of the injury and death but also received sufficient notice as contemplated by the statute R. S. 34:15-1!; N. J. S. A. 34:15-11, with respect to same.

Accordingly I find and determine that the petitioner’s decedent, Joseph Brown, on the 21st day of April, 1941, met with an accident that arose out of and in the course of his employment with the respondent, Brann & Stuart Company, which injuries were causally related to his death on the 23d day of April, 1941, that the respondent had notice and knowledge thereof within the requirements of the statute. }}« }{* >jc s|< sjs

Stephen J. Lorenz,

Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    FRANCES YAWDOSHAK, PETITIONER, v. THE SOMERVILLE IRON WORKS AND NEW JERSEY MANUFACTURERS CASUALTY INSURANCE CO., RESPONDENTS.
    Decided October 5, 1942.
    For the petitioner, David Roshein.

    For the respondents, George D. Meredith (William J. McNulty, of counsel).
   The only controversial issue here presented for determination is whether or not the death of Alex Yawdoshak on November 24th, 1941, resulted from an accident that arose out of and in the course of his employment with the respondent company. The jurisdictional factors such as notice, dependence and rate appear to be undisputed.

For the proper determination of the basic issue involved in this case, it becomes necessary to review the circumstances of the decedent’s employment and actiráties immediately preceding his death.

The evidence discloses that Alex Yawdoshak, age 56, had been employed as a laborer by the respondent at its plant in Somerville, New Jersey, for a period of upwards of nine years. His duties, in the main, consisted of loading a truck with pig iron and scrap iron, preparatory to smelting in the cupola where the said iron Avas smelted. The decedent was accompanied in this work by four other laborers. His work required him to bend down to the floor and raise metal bars weighing from five pounds to several hundred pounds and placing them in the said truck. The lighter bars were picked up hv the decedent alone. He was assisted in lifting the heavier liars. It took approximately one-half hour to load the said truck to its capacity of 4,000 pounds. It would thereupon be pushed by the said laborers who had loaded it, through the yard and to the cupola. The roadway was partially uphill and partially downhill. The testimony discloses that the truck was pushed along tracks, and upon going up the incline, it was necessary that five or six men participate in the effort. On the down grade, two men were sufficient to direct its course. The decedent’s employment commenced at 8 o’clock. On alternate days he was required to use a sledge hammer in the mornings to break up the slag. On the day in question it was his partner’s day to perform this work.

The decedent had left his home at about 7 o’clock, having had his breakfast, and appearing to his wife to be in usual, normal health. With the exception of a hernia which he had sustained in 1939 and a foot injury, for which he had been treated by the respondent’s physicians seven years prior thereto, he had suffered from no serious ailments. On arrival at work at about 8 o’clock he went about his usual routine and by 10 o’clock the decedent and his fellow workers had loaded and moved to the cupola approximately twenty tons of iron. At about ten minutes prior to his death he complained to a fellow workman of a tightening sensation in his (‘best. He stopped work and rested. A glass of water was served him in an endeavor to relieve his symptoms. After a short period of rest, the decedent and his partner, John Surowiez, endeavored to push a loaded truck. They had gone about ten feet when the decedent was seen to fall backwards on an empty car, which was in the vicinity, dead. Dr. Edgar Flint, the county physician, was notified, and after examining petitioner, made a diagnosis of “heart disease, unclassified.” There seems to he no dispute that the petitioner. at the time he suffered his original coronary symptoms, was in the performance of the heavy and arduous labor of the morning. Similarly, his final collapse occurred while he was .in the very act of pushing.the truck which had been loaded .with scrap. There seems to be no substantial contradiction that the work which the decedent was engaged in during the morning on which he met his death was heavy, laboring work. Respondents’ counsel’s attempt to characterize the work as “not as heavy as work done by the decedent previously” and as “not hard work” and “work nothing out of the ordinary,” does- not impress me. Neither does the characterization of Dr. Andrew Ruoff and Dr. J. Allen Yaeger that moving scrap iron by the decedent was not unusual to the decedent and therefore played no part in bringing on his death, because he had accustomed himself to this work. Their opinion that 60% to 80% of coronary deaths are brought on without effort forms no basis or criteria to dissociate the circumstances of this case with the coronary death at the time at which it occurred. The testimony of Dr. J. Allen. Yaeger is far from convincing. His attempted explanation that there was no causal • connection between the effort expended by the decedent and his death, because the effort was not unusual, has not been held tenuous by our courts. I need hardly cite the numerous authorities which have held ■ that this does not correctly form the basis of compensability. His further inconsistency when confronted with his attempted characterization of the initial coronary occlusion suffered by the decedent and his criteria of elements necessary to establish a causal relationship between effort and strain fails to impress the court, and, under the circumstances, can hardly be accepted by it as a basis in the proper consideration of this case.

The court finds, as a fact, that the work which the decedent had been doing was arduous and required considerable effort. This is especially true under the circumstances disclosed from the testimony.

There appeared on behalf of the petitioner, Dr. Rossi. He had occasion to treat the decedent during the early part of November for symptoms which he diagnosed as a head cold with slight bronchitis. The doctor found no cardiac symptoms (luring the period of his treatment. 1 feel that the testimony o£ Dr. Jerome G. Kaufman, eminently qualified in this field, deserves considerable weight. It was the doctor’s opinion that the effort and exertion expended by the decedent during his laborious activities on the morning in question was a competent producing cause of his death. He based his opinion on the facts as set forth in a hypothetical question which was given him for that purpose. It was the doctor’s opinion that the effort and strain which the decedent was undergoing, produced the coronary occlusion, resulting in a cardiac death at the time when it occurred. It was his opinion that the decedent first manifested evidence of the onset of his cardiac condition at the time when lie felt the tightening sensation in liis chest. 1 feel that the effect of his going back to work after the initial attack and endeavoring to push the loaded car resulted in his subsequent collapse and death. The decedent’s heart, previously weakened by the damage done at the time of the onset was further aggravated and accelerated by his endeavor to complete his daily work. The effort and strain which he then attempted was greater than that which bis heart was, at that moment, able to withstand. This clearly is a compensable condition. The testimony establishes to my satisfaction that a partial occlusion occurred about fifteen minutes prior to the decedent’s death, at the time when he felt the tightening sensation in his chest, which, in view of the chain of events which followed, and his endeavor to further exert himself, became complete at about 9 :50 A. m.

1 feel that but for the occurrences enumerated and the employment of the morning of November 24th, 1941, in the course of his work, the decedent would not have suffered an acute coronary occlusion when he did, and died as a result thereof. Tn my opinion the medical proofs offered by the respondents fail, in the light of the circumstances, to outweigh the value of the factual and medical testimony offered by the petitioner in support of the contrary conclusion.

To attribute the coronary occlusion solely to the degenerative process which, apparently by coincidence, occurred at a time immediately following a considerable degree of physical exertion on the part of the decedent, but, according to the respondent, was wholly unrelated to the employment, is to ignore the more reasonable and more probable explanation presented by the petitioner’s evidence. It is to be borne in mind that the test under our cases is probability and not absolute medical certainty. Jackson v. Delaware, Lackawanna and Western Railroad Co., 111 N. J. L. 487; 170 Atl. Rep., 22; Hercules Powder Co. v. Nieratko, 113 N. J. L. 195; 173 Atl. Rep. 606; affirmed, 114 N. J. L. 254; 176 Atl. Rep. 198. Accordingly, I am constrained to accept the testimony and proofs of the petitioner in this regard.

In determining whether or not an accidental injury has been suffered within the meaning of the act, it should be observed that it need not be the result of traumatic force. Bernstein Furniture Co. v. Kelly, 114 N. J. L. 500; 177 Atl. Rep. 554; affirmed, 115 N. J. L. 500; 180 Atl. Rep. 832; and the fact that the injury was accidental may legitimately be inferred from circumstantial evidence. De Fazio's Estate v. Goldschmidt, 87 N. J. L. 317; 88 Atl. Rep. 705. Hor need there be any exertion or stress out of the ordinary, where the performance of manual labor entails a strain upon an underlying diseased condition of the employee’s anatomy, in consequence of which death occurs. Molnar v. American Smelting and Refining Co., 127 N. J. L. 118; 21 Atl. Rep. (2d) 213.

Recognizing, as our cases do, that' reasonable probability and not absolute medical certainty is the test to be applied in compensation eases, Jackson v. Delaware, Lackawanna and Western Railroad Co., supra, and all that is required for the petitioner to prevail is that the claimed conclusion from the facts be a probable or more probable hypothesis with reference to'the possibility of other hypotheses, Belyus v. Wilkinson Gaddis Co., 115 N. J. L. 43; 178 Atl. Rep. 181; affirmed, 116 N. J. L. 92; 182 Atl. Rep. 873. Í am satisfied that the petitioner’s evidence in the instant case more than meets the burden of prooi which is'hers.

The real question involved in this litigation has recently received the attention of our Court of Errors and Appeals, as well as the Supreme Court. Molnar v. The American Smelting and Refining Co., 128 N. J. L. 11; 24 Atl. Rep. (2d) 392; Ciecwirz v. Public Service Electric and, Gas Co., 128 N. J. L. 16; 24 Atl. Rep. (2d) 394; Passafiume v. H. T. Heinz, Inc., 128 N. J. L. 27; 24 Atl. Rep. (2d) 394. Those decisions have reaffirmed the principles enunciated in the earlier cases “that a compensable accident is made out upon a showing that there was a causal relation between the stress, strain and exertion occasioned by the petitioner’s work and his eventual disability or death.” This particularly, where there existed an underlying diseased or weakened condition of the heart. Bernstein Furniture Co. v. Kelly, 115 N. J. L. 500; 180 Atl. Rep. 832; Hentz v. Janssen Dairy Corp., 122 N. J. L. 494; 6 Atl. Rep. (2d) 409; Ciocca v. National Sugar Co., 124 N. J. L. 329; 12 Atl. Rep. (2d) 130. Nor is the degree of exertion of any consequence, so long as the performance of the required work caused a strain upon the heart. Molnar v. American Smelting and Refining Co., supra; Niemi v. Thomas Iron Co., 20 N. J. Mis. R. 197; 26 Atl. Rep. (2d) 494; Barcalow v. Board, of Education of Borough of Caldwell, 14 N. J. Mis. R. 718; 187 Atl. Rep. 32. However, whether the work the petitioner was doing be characterized, as “effort expended,” or “extra strain,” or “exertion of the moment,” so long as there was a causal relationship between the employee’s work and his disability, then his disability was the result of an accident arising out of and in the course of his employment. Ciecwirz v. Public Service Electric and, Gas Co., supra.

My careful consideration of the proofs adduced, and all reasonable inferences deducible therefrom, convinces me that the petitioner has adequately established, factually and legally, that decedent met with an accident on November 24th, 1941, which arose out of and in the course of his employment with the respondent. Accordingly, she is entitled to the statutory dependency compensation. :;j }•: $ $ & $

It is, therefore, * * * ordered that judgment be entered in favor of Trances Yawdoshak, the petitioner, and against The Somerville Iron Works and New Jersey Manufacturers Casualty Insurance Co., the respondents, in accordance with the foregoing.

Haeey S. Medinets,

Deputy Commissioner.


author: Eietjdek, Y. C.

text:
    Martha Thomas and Rose Yow, complainants, v. Walter Thomas et al., defendants.
    [Decided October 19th, 1942.]

      Mr. Harvey Bein (Mr. James Rosen, of counsel), for the motion.

      Mr. Vincent M. Bieman (Mr. Cyril J. McCauley, of counsel), for the complainants.
   Eietjdek, Y. C.

The bill leaves much to inference and presumption, as well as to imagination. It can be inferred from its allegations that Emilie Wallen ¿lied intestate December 2d, 1941, leaving as her next of kin her four children, Martha Thomas, Rose Yow, Walter Thomas and Rudolph Thomas (the first two of whom are complainants and the last two are defendants, together with Bertha Thomas, wife of Walter Thomas), and that letters of administration were granted on decedent’s estate to said Walter Thomas by the surrogate of Hudson Cormty.

The bill alleges that at her death decedent owned (a) a first mortgage of $3,000 on Sixty-second Street property, which property was owned by Walter Thomas; (b) a second mortgage of $2,000 on Nelson Avenue property, which property was also owned by Walter Thomas and which mortgage was subject to a first mortgage of $3,500 held by Rudolph Thomas; (c) a claim of $500 against Walter Thomas for money loaned; that Walter and Rudolph Thomas fraudulently obtained from complainants satisfaction of said mortgages and divers other agreements (not named) and renunciation of right to administration, bond, mortgage and deed, with intent to defraud them of their interests in the estate of decedent by promising both complainants on or about December 23d, 1941, that Martha Thomas “could live rent free for the rest of her life” in the Nelson Avenue property, if complainants would sign certain papers to effect such purpose, whereupon complainants signed an agreement, a copy of which is annexed to the bill and made part thereof, dated December 23d, 1941; that relying on the aforesaid promise made by Walter and Rudolph Thomas, complainants executed (a) renunciations (not mentioned in the agreement) of their right of administration in.favor of Walter Thomas; (b) satisfaction dated January 3d, 1942, oi the $3,000 first mortgage on Sixty-second Street property; (c) satisfaction of same date of the $2,000 second mortgage on Nelson Avenue propertjr, (Both according to the terms of the agreement.)

The complainants do not claim that they - executed the agreement or performed acts thereunder without fully understanding what they were doing, or that they were induced to execute the agreement and the documents therein mentioned, by misrepresentation as to their effect on complainants’ rights and interests. The sole complaint is that they were induced to execute it because of a certain promise made to them by Walter and Rudolph Thomas. The agreement presumably contains the entire terms concerning the manner of settlement of decedent’s estate then agreed on, and it is absolutely silent as to the claimed right of Martha Thomas to live in the Nelson Avenue property rent free for her life. Complainants seek to add, by oral testimony, a further provision or condition to those definitely stated without alleging that such provision was omitted by defendants’ fraud or by mistake of the parties.

The agreement provides that Walter Thomas and wife will convey the Nelson Avenue property to Martha Thomas, and it is to be inferred from various allegations of the bill that such conveyance was duly made. If Walter and Rudolph Thomas had theretofore orally promised complainants that Martha Thomas could have free occupancy of that property for her life, and whether or not the promise was enforceable under the statute of frauds (R. S. 25:1-1; N. J. S. A. 25:1-1), that conveyance was performance of their promise so far-as said defendants could possibly perform, and thereafter whether Martha Thomas occupied said property for her life was dependent solely on her own acts.

The agreement further provides that after Martha Thomas shall have taken title to the Nelson Avenue property, Rudolph Thomas will advance all necessary money required to pay all just debts and expenses of decedent’s estate and that Martha Thomas will execute to him a bond and first mortgage thereon in the sum of $3,500, “plus che additional sum of money to be determined, which the said Rudolph Thomas will expend in payment of the debts of decedent.” Despite her claim for a life interest in the Nelson Avenue property by virtue of a promise to which Rudolph Thomas was a party, Martha 'Thomas executed to him a mortgage thereon, dated January 5th, 1942, for $4,900 without reservation of her claimed interest in the mortgaged premises. That mortgage was in the nature of an absolute conveyance of her entire interest in said property subject only to her right of redemption.

The bill further alleges that by deed dated January 7th, 1942, Martha Thomas conveyed the Nelson Avenue property to Rudolph Thomas free and clear of encumbrances. The agreement annexed to the bill does not call for the execution of such a deed and the reason for its execution, or the circumstances under which it was executed, are not stated in the bill. The next succeeding paragraph thereof contains the allegation that the defendants procured the execution of “said papers” by complainants, by fraud and deceit in that they lied when they said that as a result thereof Martha Thomas would be able to live rent free for the rest of her life in the Nelson Avenue property, and that they have failed to keep such promise. If by “said papers” complainants intend to include the deed from Martha Thomas to Rudolph Thomas, I consider this allegation of a promise to be merely a reiteration of the charge that such promise was made December 23d, 1941, because there is no allegation that a new promise was made January 7th, 1942, when Martha Thomas by her deed conveyed away her entire interest in the property without reservation. The bill-further alleges that complainants are informed and believe that Rudolph Thomas sold the Nelson Avenue property July 8th, 1942, to an innocent purchaser for $4,500'cash.

The prayers of the bill are that an account he taken of the amounts due complainants from the estate of decedent and that defendants be decreed to pay such sums; that Walter Thomas be ordered to resign as administrator of the estate in favor of a substituted administrator appointed by this court; that Rudolph Thomas be ordered to pay complainants their share of the proceeds of sale of the Nelson Avenue property; that Walter and Bertha Thomas be ordered to execute to complainants a first mortgage on the Sixty-second Street property in such amount as this court finds complainants are entitled to, or pay such amount to complainants in cash; that defendants Walter and Bertha Thomas be decreed to hold title to the Sixty-second Street property in trust for complainants and be ordered to sell said property and pay complainants the amount found by this court to be due them.

The defendants argue that the hill fails to set out with certainty and particularity, facts from which the existence of fraud may reasonably be deduced or inferred, but I find no merit in the contention. The rule of equity pleading merely requires complainants to particularize the fact or’ facts «instituting the fraud claimed, so that defendants may have a full opportunity for denial or explanation. Here the allegation is that complainants were induced to execute the agreement annexed to the hill and certain other papers, on defendants5 promise made prior to and as an inducement for such execution, that one of the complainants would he entitled to a stated right in a certain piece of real property, which promise defendants failed to perform. I consider the fraud charged to he definitely stated and that it is the sole fraud charged against defendants.

Tí such promise was made and it was binding on defendants. for a breach thereof defendants can now be called on to respond only in damages, the property to which it is claimed Martha Thomas5 right was to attach being now in the ownership of an innocent third party. For recovery of money damages complainants must resort to the law courts. Polhemus v. Holland Trust Co., 61 N. J. Eq. 654; 47 Atl. Rep. 417; Eggers v. Anderson, 63 N. J. Eq. 264; 49 Atl. Rep. 578; Keuper v. Pyramid Bond and Mortgage Corp., 113 N. J. Eq. 376; 166 Atl. Rep. 928; affirmed, 117 N. J. Eq. 110; 174 Atl. Rep. 723; New Amsterdam Casualty Co. v. Mandel, 115 N. J. Eq. 198; 170 Atl. Rep. 19; affirmed, 116 N. J. Eq. 48; 172 Atl. Rep. 364; Pridmore v. Steneck, 132 N. J. Eq. 35; 191 Atl. Rep. 861.

If complainants assert as the basis for the relief for which they pray, an oral promise or agreement made contemporaneous with the conveyance by Martha Thomas to Rudolph Thomas that the grantor should retain what amounts to a life estate in the conveyed premises, such agreement, being required by the statute of frauds to be put in writing, is rmenforceable, no actual, positive fraud in connection with that conveyance being charged against the promisors. R. S. 25:1-1; N. J. S. A. 25:1-1; Brands v. Cassedy, 124 N. J. Eq. 417; 1 Atl. Rep. (2d) 689; affirmed, 125 N. J. Eq. 346; 5 Atl. Rep. (2d) 685; Droutman v. The E. L. & M. Garage, Inc., 129 N. J. Eq. 545; 20 Atl. Rep. (2d) 75. In any event, Martha Thomas cannot now be heard to assert a claim which is in derogation of the estate granted by said conveyance. Dieckman v. Walser, 114 N. J. Eq. 382; 168

Atl. Rep. 582; Blumberg v. Weiss, 129 N. J. Eq. 34-89; 17 Atl. Rep. (2d) 823.

If is not perceived on what theory the complainant Rose Yow claims to have suffered damage at the hands of defendants. The benefit from the promise alleged to have been made by Walter and Rudolph Thomas was to accrue only to Martha Thomas and if such promise was made, it did not fail of performance. Failure to realize its benefits after performance resulted from the act of the beneficiary in subsequently conveying awajr her beneficial interest. Nor is it perceived that Bertha Thomas, wife of Walter Thomas, is properly, named as a defendant and relief sought against her. She had no interest in the decedent's estate. She was a party to the agreement annexed to the bill merely for the purpose of agreeing to join with her husband in executing a deed for the Nelson Avenue property to Martha Thomas. The bill does not allege that she participated in any way in the fraud charged against her husband and Rudolph Thomas.

Upon the facts and for the reasons hereinabove stated, I conclude that complainants are not entitled to that part of the relief prayed which is based on the alleged promise made to complainants by Walter and Rudolph Thomas.

As.to .the other prayers for relief. The bill fails to present any special reasons why any part of the administration of decedent's estate should be taken over by this court. When -it appears, as here, that such administration can be had in an Orphans Court and the relief sought by complainants can be had fully and adequately in such court, this court should not undertake to exercise its concurrent jurisdiction with the Orphans Court to grant such relief. Jordan v. Logue, 76 N. J. Eq. 471; 79 Atl. Rep. 426; Summerill v. Summerill, 99 N. J. Eq. 502; 134 Atl. Rep. 113; Civic Enterprises, Inc., v. Mechanics, &c., 115 N. J. Eq. 66; 169 Atl. Rep. 696; Clayton v. Asbury Park, &c., Bank, 115 N. J. Eq. 480; 171 Atl. Rep. 502; Brown v. Fidelity Union Trust Co., 128 N. J. Eq. 197; 15 Atl. Rep. (2d) 788.

An account of the amounts due complainants from the estate of decedent can be had in the Orphans Court. The administrator is required by law to account there and may be cited by that court to do so (R. S. 3:1-2; N. J. S. A. 3:1-2) but he is not required to file his account until one year alter his appointment (R. S. 3:10-5; N. J. S. A. 8:10-5). which time does not appear to have expired. It must be presumed that he will comply with the statute, but if he does not, he is subject to be cited to do so (R. S. 3:1-2; N. J. S. A. 3:1-2), and if he fails to obey the citation he will be removed (72. 8. 8:10-20; N. J. S. A. 3;10-20). If he fails to include in his account the sum of $500 which the bill alleges he owes the estate, exceptions may be filed to his account (R. S. 3:10-16; N. J. S. A. 3:10-16) and an order for discovery may issue against him out of that court (72. 8. 3:13-10; N. J. S. A. 8:18-10). He is also subject to removal from his office by the Orphans Court (R. S. 3:12; N. J. 8. A. ,3:12-4), and it seems that power to remove him does not reside in this court. Bentley v. Dixon, 60 N. J. Eq. 353; 46 Atl. Rep. 689.

Defendants' motion to strike the bill of complaint will be granted.