text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    SALOMENA KUROPATA, PETITIONER, v. NATIONAL SUGAR REFINING COMPANY, RESPONDENT.
    Decided June 16, 1938.
    For the petitioner, George A. Henderson.

    For the respondent, McCarter n& English.

   sfc ❖ ❖ ❖ ❖ Hs

On August 8th, 1937, one Frank Kuropata was an employe of the respondent employed at its plant located in Edgewater, New Jersey. On that particular day he was engaged in assisting in cleaning out a tank in the company’s plant. The work of cleaning the tank had been completed and the decedent reached upward to grasp an electric light extension line with his left hand and hand it out of the tank to a co-employe. As he did so he suddenly fell to the bottom of the tank which was made up of steam pipes some of which were hot. He was found with his face down and his arms on those pipes which were hot. The said Frank Kuropata was then lifted out of the tank and died shortly thereafter at the plant of the respondent without regaining consciousness and despite efforts to revive him.

The question naturally arising was what in fact was the cause of the employe’s death. The petitioner herein filed her petition on December 21st, 1937, as widow of the decedent and named therein herself and two daughters as dependents. In that petition she seeks compensation on the theory that the decedent met his death as a result of an accident arising in and out of his employment with the respondent and in answer to question No. 17 as to the nature of the accident, she alleges that the petitioner suffered an electric shock and severe burns and was electrocuted, dying approximately two hours thereafter.

The respondent in its answer denied that the decedent-employe died as a result of any accident arising in and out of his employment and on the contrary alleged that the decedent’s death was due to natural causes not connected with his employment.

At the trial of the case various lay witnesses and medical witnesses testified in behalf of both the petitioner and the respondent. From the testimony it appears that at the time of the occurrence, certain laymen surmised that the decedent had suffered an electric shock when grasping the electric light extension cord and the police department was so notified and immediately dispatched officers to the respondent’s plant for the purpose of administering first aid. On the arrival of the police at the plant of the respondent, artificial respiration was attempted but the decedent failed to respond. It appears also that Dr. D’Agostin was called to the respondent’s plant immediately after the occurrence and on his arrival took part in endeavoring to revive the decedent to no avail and he pronounced the said employe dead.

Because of the report of electric shock, the police officials took charge of the electric light extension cord involved and took the same to police headquarters. Lieutenant Flannery and Officer Coleman both of the Edgewater police department were called as witnesses by the petitioner. Both of these police officials testified that they tested the electric light extension cord in question and that it was in good condition free from any short circuit or other defects. Officer Coleman testified specifically that he had been, prior to his connection with the police department, employed as an electrician for years and that he had tested the electric light extension equipment both with a current of one hundred and ten volts and with a magneto and that he conld produce neither a short circuit nor a ground; that the socket and cord were in good shape and the insulation perfect. He testified that in his opinion Frank Kuropata could not receive a shock from the use of the said electric light extension cord equipment.

All of the police officials as well as the medical witnesses who saw the body of the deceased testified that there were no burns on the petitioner’s left hand which he had used to grasp the light and that neither were there any burns on his feet. From all the testimony as to the burns on the petitioner’s body, I find that they were caused by the hot steam pipes on the bottom of the tank and were not electric burns.

The petitioner produced several doctors, none of whom had actually seen the body of the decedent nor attended an autopsy which was subsequently performed upon him. The testimony of the petitioner’s medical witnesses was directed to the answering of a hypothetical question put by petitioner’s counsel necessarily prior to the admission of the respondent’s proof in the case. Based upon the hypothetical question, the petitioner’s doctors attributed the decedent’s death to electrocution. However, in arriving at their conclusion,, the doctors testified that they took into consideration the fact as given to them in the hypothetical question that the decedent’s face was red and not cyanotic. Their opinion was, however, that if the decedent had died of heart failure or of a heart condition due to disease, they would expect to find his face cyanotic. It was also brought out by the petitioner’s medical witnesses that if the decedent suffered an electric shock, rigor mortis would immediately set in.

The respondent on its case produced Dr. Henry D’Agostin, who was the physician immediately called to the respondent’s plant on the day in question and who sought to revive the petitioner. This doctor testified that the man’s face was deeply cyanotic; that he found no pulsations and that he was unable to revive him. He stated he found no evidence whatsoever of electric shock or electric burns on the decedent’s body and that he attended an autopsy which was performed by assistant county physician, Dr. Greenfield, on the following day, August 9th, 1937. He also testified that rigor mortis had not set in at the time of his attendance of the decedent and did not do so until several hours after his first attendance. Dr. Greenfield was called by the respondent and he testified to the performance of the autopsy in conjunction with Dr. D’Agostin. He said that he found steam burns over the face, right hand and forearm of the decedent and that he found no burns on his left hand or feet and no evidence whatever of electric shock. He testified in accordance with the death certificate and autopsy report produced by him that the death of decedent was caused by coronary sclerosis and occlusion, contributory cause, chronic myocarditis, all confirmed by his autopsy. The autopsy showed that the decedent’s heart muscle was soft; that the aortic ring showed marked advance atheromatous changes; that there was a bone-like ring — some plaques on the arch of the aorta; that both coronaries showed advanced coronary disease; that they were pipe stem in character and almost occluded in places with bonelike concretion.

It was on the basis of his findings by autopsy that Dr. Greenfield in his death certificate certified that the death of the decedent was not due to accident but due to coronary sclerosis and occlusion.

In addition to Dr. Greenfield, the respondent produced Dr. Jack Blumberg, who testified that he had had considerable experience in electric shock cases and that he had considered, together with the other factors in the case, the findings as revealed by the autopsy and that in his opinion the decedent’s death was due solely to natural causes and in no way caused by an electric shock. Dr. D’Agostin and Dr. Greenfield also testified that in their opinion the death of the decedent was in no way attributable to an electric shock but that he had died of natural causes as set forth in the autopsy findings, to wit, an advanced heart condition.

After considering all the testimony in this case as well as the exhibits, some of which testimony I have outlined hereinabove, I have come to the conclusion that the petitioner has failed to sustain her burden of proving that the decedent met with an accident arising in and out of his employment with the respondent.

I find as a matter of fact that the decedent did not sustain an accident arising in and out of his employment and was not electrocuted. I also (ind as a matter of fact that the decedent’s fall and death were due to natural causes, to wit, a heart condition technically referred to by Dr. Greenfield as coronary sclerosis and occlusion. I find further as a matter of fact that there is no relationship between the grasping by the decedent of the electric light extension cord and his death as a result of his heart condition, but that those circumstances were merely a coincidence in point of time. I find further that the electric light extension cord was in good safe working order and did not subject the decedent to an electric shock.

While it is true that the death of the decedent took place at the plant of the respondent at a time when he was engaged in his employment, that in itself is not sufficient to entitle the petitioner to compensation. See Johnson v. Ulster Iron Works, 9 N. J. Mis. R. 239; 153 Atl. Rep. 95; affirmed, 109 N. J. L. 267; 160 Atl. Rep. 635; Armstrong v. Union County Trust Co., 14 N. J. Mis. R. 648; 186 Atl. Rep. 522; Nardone v. Public Service, 113 N. J. L. 540 (at p. 550); 174 Atl. Rep. 745.

In order for the petitioner to recover she must not only prove the death of the decedent arose in the course of his employment, but that the same arose out of his employment and, as stated above, in this case the petitioner has failed to prove that the death of decedent arose out of his employment with the respondent, contrariwise, the respondent has proved the decedent’s death was solely due to natural causes.

It is, therefore, * * * adjudicated, that the decedent, Drank Kuropata, did not die as a result of an accident arising out of and in the course of employment with the respondent and is ordered that the petition filed herein be and the same is hereby dismissed.

John C. Wegner, Referee.


source: Caselaw Access Project

author: Meaney, C. P. J.

license: Public Domain

text:
    Hudson County Orphans Court.
    IN THE MATTER OF THE ESTATE OF FERDINAND KAEGEBEHN, DECEASED.
    Decided June 30, 1938.
    Proctors for the accountants, Burke, Sheridan & Hourigan.

    Proctor for the exceptant, Thomas B. Davidson.

    Proctors for Walter F. Ramm, Jr., an infant, Milton, McNulty & Augelli.

   Meaney, C. P. J.

Ferdinand Kaegebehn died a resident of Hudson county on October 5th, 1936, leaving a last will and testament which was duly admitted to probate by the surrogate of Hudson county who issued letters testamentary to the Commonwealth Trust Company, and William F. Burke, the named executors.

Among other things, the will provided as follows:

“Eighth: I give, devise and bequeath to my friend, Hildegard Agnes Eich, * * * an annual income of Five hundred dollars ($500), to be taken also from my American Telephone and Telegraph Company dividends, and to be paid to her until the death of Clara M. Fairlie, when and upon the death of Clara M. Fairlie, the annual sum of One thousand dollars ($1,000), to be paid to the said Hildegard Agnes Eich, the said sum of One thousand dollars ($1,000) to be also taken from the dividends of the American Telephone and Telegraph Company stock, and from the sale of any other stocks in my name. It is my intention that this annuity be continued for the life of said Hildegard Agnes Eich, and that if sufficient money is not available from dividends aforesaid, that sufficient stock be sold from time to time to make up this annuity.
“Ninth: After all the above bequests have been complied with, including the annual annuity of One thousand dollars ($1,000) to Hildegard Agnes Eich, I give, devise and bequeath, after the death of Hildegard Agnes Eich, all the rest, residue and remainder of my property and estate * * * to my grandnephew, Walter Eamni * *

Upon report to the Transfer Inheritance Tax Bureau of the state, that office, pursuant to the statute, computed the present value of the $500 annuity to Hildegard Agnes Eich, at $7,367.46, and the present value of her contingent interest in the $1,000 annuity at $3,937.09. The tax on these sums was accordingly assessed at $589.40 and $314.97, respectively. The bureau, however, suggested a compromise of the latter tax at $193.36, fixing the total at $782.76, which sum was paid by the executors out of estate funds, and for which they prajr allowance in the final account filed by them.

The executors have taken the position in their account and in the brief filed in their behalf, that the taxes thus assessed by the state are properly chargeable against the annuity bequeathed to Hildegard Agnes Eich; as a matter of fact they have applied the first payment of $500 against the same pro tanto and indicate their intention of deducting sufficient from the second payment, when it becomes due, to clear up the tax entirely. The annuitant excepts to this procedure. She contends that the tax is chargeable against the estate and that the annuity should be paid to her free and clear of any deductions on account thereof. Counsel for the residuary legatee, Walter Eamm, who is an infant, appearing by Walter F. Eamm, his next friend, argues that the annuity is chargeable with deductions for the payment of the tax and that the tax should be paid by the annuitant either at once, as the executors contend, or by equal installments over a period of years, the amount of each installment to be computed by dividing the amount of the tax by the number of years of expectancy of annuitant’s life as shown by the American Experience Table of Mortality.

The will itself is silent as to whether the estate or the annuitant should bear the burden of the tax.

Neither my own search or that of counsel disclosed any case in this state directly deciding the point in issue. The cases we have been able to find deal with the tax on life estates, but as pointed out in Steelman v. Wheaton, 72 N. J. Eq. 626; 66 Atl. Rep. 195, there is a marked distinction between life estates and annuities. In Welsh v. Brown, 43 N. J. L. 37, 43, it was said:

“The distinction between an annuity pure and simple, which is to be paid at all events out of the testator’s estate, at the expense of the residuary legatee, and the interest or income for life of a certain sum set apart by the testator for that purpose, and given over in gross to another after the death of the life tenant, has been quite uniformly adhered to.”

Aside from the fact that the testator himself refers to his bequest to Hildegard Agnes Eich as an annuity, it partakes of all of the incidents thereof; it imports the payment of “a fixed sum, not indeterminate in amount, or varying according to the income or profits, and if the amount set apart by the executor to produce this annual'sum should for anjr reason fail to produce it, the residuary legatee would be required to provide the deficiency.” Steelman v. Wheaton, supra.

Thus, since an annuity calls for the payment of a definite sum of money at stated periods of time, it has been held that an annuity is merely a succession of pecuniary legacies, standing on the same footing, and governed by the same rules pertaining to such legacies. Quill v. Schlichter, 121 N. J. Eq. 149; 188 Atl. Rep. 237; Chemical Bank and Trust Co. v. Barnett, 114 N. J. Eq. 4; 168 Atl. Rep. 173; 3 Pom. Eq. Jur. (4th ed.), § 1139.

Unless a testator by his will, expressly or by implication, expresses it to be his intention that a legacy is to be paid free and clear of the inheritance tax, the tax is properly deductible from the legacy before payment. Parrot v. Rogers, 86 N. J. Eq. 311. I see no reason why this rule, applicable as it is to a legacy ordered to be paid outright, should not be applied in the case of an annuity which, as stated above, is merely a succession of such legacies.

Authority for this view is: In re Tracy, 179 N. Y. 501; 72 N. E. Rep. 519, a New York Court of Appeals case cited with approval as to one of its phases In re Diehl’s Executor, 88 N. J. Eq. 310; 102 Atl. Rep. 738; affirmed, by the Court of Errors and Appeals, per curiam, 89 N. J. Eq. 209; 103 Atl. Rep. 822. In that case, the testator created certain life estates and also an annuity in favor of a faithful servant who had been in his employ for a number of years. As to the life estates, the court held that the inheritance tax should be paid out of the corpus of the trust funds, and the reason therefor, which does not now concern us because the bequest involved with a life estate, is stated in In re Diehl, supra. But as to the annuity, it was held that the amount of the tax should be paid out of the fund creating the annuity and that the annuitant should thereafter reimburse that fund out of the payments made to him. See, also, In re U. S. Trust Co., 148 N. Y. S. 762; 86 Misc. 603.

Having determined that the bequest to Hildegard Agnes Eich, and not the estate, must ultimately bear the burden of the inheritance tax, the question which arises is, how shall the estate be reimbursed? Shall the tax be deducted before any annuity payments are made, or shall it be pro rated, or amortized, over a number of years?

As stated, the executors take the former view, and cite as authority for the position they have taken, the Massachusetts case of Minot v. Winthrop, 162 Mass. 113; 38 N. E. Rep. 512, where the Supreme Judicial Court of that state said:

"The statute contemplates, we think, that the tax should be paid out of the annuity as soon as the annuity becomes payable, and at the time when payments on account of the annuity are made. The effect of this construction may be that the first payment or payments on account of the annuity may be exhausted by the tax.”

The rule is too harsh. It has no basis in logic, and to a certain extent defeats what I conceive to be the intention of the testator. Our Inheritance Tax law contemplates, as pointed out in Parrot v. Rogers, supra, that the donee of a testamentary gift shall pay the tax stated in the act. The tax imposed under the act is a premium or privilege upon the devolution of property; it is a legacy or succession tax. In re Diehl, supra. While as between the taxing authority and the decedent’s estate, in cases such as this, the former is entitled, under the act, to be paid immediately and in full, I do not think that the ultimate beneficiary of the gift is required or should be compelled to pay a tax upon a legacy that may never be received. Such may be the practical effect of the application of the rule for the Minot case.

I am constrained, therefore, to adopt the suggestion contained in the Tracy case, supra. There the court said:

“The method of returning to the residuary estate the tax so. paid by the trustees is as follows: Take for illustration an annuitant whose probable duration of life is ten years. The trustees would deduct from each annual payment as made one-tenth of the tax and restore it to the residuary estate.”

Such a method, it seems to me, conforms with the equity of the situation. If the annuitant survives the full period of life expectancy, the tax will be repaid in full. If not, the annuitant will have paid the tax only on such of the legacies as were received. Such a view seems also to carry out the apparent intent of the testator that the annuitant shall immediately receive the benefits from the periodic successive legacies, subject to the burden imposed by law, and not that those benefits shall be postponed until the full tax is paid.


author: John C. Wegner, Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    ROSE NOVAK, PETITIONER, v. UNION PETROLEUM PRODUCTS COMPANY, L. B. GARAGE, LOUIS BERKOWITZ, RESPONDENTS.
    Decided May 24, 1938.
    For the petitioner, Dominick R. Rinaldi.

    For Louis Berkowitz, Avidan & Avidan.

    For Union Petroleum Products Company, Walter X. Trumbull.

   ?;< 5s« H*

The claim petition filed herein by Bose Novak seeks compensation nnder the Workmen’s Compensation act of New Jersey for the dependents of Joseph John Novak, deceased, on account of the death of the said Joseph John Novak on August 29th, 1937, alleged to have resulted from an accident arising out of and in the course of his employment with the respondents.

The within claim has been submitted to the bureau upon a stipulation of facts for the purpose of determining the preliminary question as to whether or not the Workmen’s Compensation Bureau has jurisdiction over the within claim. My examination of the submitted facts and the law pertaining thereto leads me to the conclusion that the Workmen’s Compensation Bureau is deprived of jurisdiction herein for the reason that the claim herein is one of admiralty jurisdiction.

The facts stipulated were that the decedent, Joseph John Novak, was drowned on August 29th, 1937, in the navigable waters of the Hudson river in the State of New York; that immediately prior to this drowning he was last seen upon a yacht owned by respondent, Louis Berkowitz, president of the Hnion Petroleum Products Company, and moored in the Hudson river, navigable waters. The most favorable inference permitted from the facts stipulated was that the decedent, Joseph John Novak, met with an accident while working on the aforesaid yacht, as a result of which accident he fell into the Hudson river and was drowned. It was further stipulated that the bureau may consider on this determination only, the following facts as though properly proven by the petitioner, without the respondents, however, admitting the truth thereof, namely, that the decedent was regularly employed by the Hnion Petroleum Products Company prior to the alleged accident, in its garage in Hoboken, New Jersey, and that on previous occasions the decedent had been working on the said yacht, receiving his compensation therefor by checks of the respondent Hnion Petroleum Products Company.

I find that since the accident and drowning in the within case occurred in navigable waters, the claim is one of admiralty jurisdiction and the Workmen’s Compensation Bureau is therefore deprived of jurisdiction.

The test of jurisdiction in injuries of this kind is the locality of the person or thing injured. 1 C. J. 1285, § 119; Martin v. West, 222 U. S. 191; 32 Sup. Ct. Rep. 42. See, also, Baldwin v. Linde-Griffith Construction Co. (Court of Errors and Appeals), 115 N. J. L. 608; 181 Atl. Rep. 35. The accident and death occurring in navigable waters, the claim is therefore within admiralty jurisdiction.

It is the settled law that the Workmen’s Compensation act of New Jersey can have no jurisdiction over a claim cognizable in admiralty. The United States Supreme Court in the recent case of The Linseed King, 285 U. S. 502; 52 Sup. Ct. Rep. 450, 453, had further occasion to consider this aspect of the law and the court reaffirmed the rule that the Workmen's Compensation act of New Jersey was deprived of jurisdiction of any cause falling within admiralty jurisdiction. Said the United States Supreme Court:

“The Workmen's Compensation law of New Jersey * * *, the purpose of which was to supersede the common law redress in tort cases and statutory rights consequent upon death by wrongful act, and to substitute a commuted compensation for injury or death of an employe, irrespective of fault, is not applicable to the injuries and deaths under consideration.
“The decisions hold that the remedy which the compensation statute attempts to give is of a character wholly unknown to the common law, incapable of enforcement by the ordinary processes of any court, and is not saved to suitors from the grant of exclusive jurisdiction to the courts of the United States of all civil eases of admiralty and maritime jurisdiction.” Citing the case of Southern Pacific Co. v. Jensen, 244 U. S. 205; 37 Sup. Ct. 524.

The court said further:

“That law (the Workmen’s Compensation act of New Jersey) has not been recognized and taken up as part of the admiralty jurisprudence of the United States.”

The Supreme Court quoting from the Jensen case {supra) said further:

“And finally, this remedy (under the Compensation act) is not consistent with the policy of Congress to encourage investments in ships, manifested in the acts of 1851 * * * which declare a limitation upon the liability of their owners.”

This rule of law has been determined by the Court of Errors and Appeals in the ease of March v. Vulcan Iron Works, 102 N. J. L. 337; 132 Atl. Rep. 89, wherein the court held that a claim for a fatal accident on navigable waters was one exclusively within admiralty jurisdiction and that the Workmen's Compensation act cannot “intrude upon a field of exclusive federal jurisdiction.” The March case refers quite fully to the authorities previously cited and in other jurisdictions.

The same principle of law has been previously held by the Workmen’s Compensation Bureau in the following cases: Pollard v. Camden Terminal Co., 6 N. J. Mis. R. 938; Wenke v. Bethlehem Steep Corp., 8 Id. 765; Stretkowicz v. William Spencer & Son Corp., 185 Atl. Rep. 371.

In accordance with the foregoing I do therefore find and determine that the Workmen’s Compensation Bureau has no jurisdiction over the within claim, the matter being one of admiralty jurisdiction.

It is therefore ordered that the petition herein be and the same is hereby dismissed.

# ^

John C. Wegner, Deputy Commissioner.


author: Bodine, J.

text:
    BAY CITY PLUMBING AND HEATING SUPPLY, INCORPORATED, A CORPORATION OF THE STATE OF NEW JERSEY, PLAINTIFF-APPELLANT, v. ACE CONTRACTING COMPANY, A CORPORATION OF THE STATE OF NEW JERSEY, BUILDER, AND HENRY A. GAEDE AND FREDERICK CELLA, EXECUTORS UNDER THE LAST WILL AND TESTAMENT OF ROSA CELLA, DECEASED, DEFENDANTS-APPELLEES.
    Submitted May 3, 1938
    Decided July 7, 1938.
    Before Brogan, Chief Justice, and Justices Bodine and Heher.
    For the plaintiff-appellant, Maurice C. Brigadier.

    For Henry A. Gaede and Frederick Celia, McDermott, Enright & Carpenter.

   Bodine, J.

The plaintiff appeals from an order striking its complaint as sham in a mechanic’s lien action. The notice in compliance with Rev. Stat. 2 :60-113 charges Rosa and Antonio L. Celia and Louis Celia as the persons for whom the supplied materials were to be furnished. It was admitted that Louis J. Celia was the general agent of Rosa Celia with full power to order materials and supplies at her expense. His affidavit is a denial that he ordered the materials and supplies.

The affidavits filed on behalf of the plaintiff, however, assert that it was unwilling to furnish materials to the contractor engaged in making alteration to the Celia property, bnt that the materials in question were furnished upon the request of Louis J. Celia, and upon his promise that the payment would be made, and that no goods were furnished till the notice was filed. If the facts be as the affidavits upon behalf of the plaintiff show, the complaint was not sham. It should, therefore, not have been struck.

The judgment will be reversed.


author: Per Curiam.

text:
    IN THE MATTER OF THE APPLICATION OF MORRIS WESLER FOR REINSTATEMENT AS AN ATTORNEY-AT-LAW OF THE STATE OF NEW JERSEY.
    Argued May 3, 1938
    Decided June 4, 1938.
    Before Justices Trenchard, Parker and Perskie.
    For the petitioner, Herman Finn.

   Per Curiam.

On March 4th, 1936, Morris Wesler was suspended from the practice of law as an attorney-at-law of our state for a period of two years and “until the further order of the court.” The two years having elapsed, he seeks reinstatement.

Notice of this application was served both upon the chairman of the grievance committee of the Atlantic County Bar Association for the year 1936 (when the order of suspension was entered), and upon the present chairman of the same committee. No one of either committee appeared in opposition thereto. In explanation thereof we are told that the committee had no special information concerning the applicant since his suspension, and, moreover, that no intimation has ever come from the court that such committees were expected to supervise the conduct of suspended attorneys during their period of suspension.

Notwithstanding this circumstance, the court upon its own motion called upon the present grievance committee to ascertain whether the conduct of Wesler during the two-year period had been such as to commend him to the favorable consideration of the court. In pursuance of the call thus made, we are advised, in writing, by the committee that it called a meeting at which all the members were present; that Wesler’s application was presented; and that each member was asked whether he knew of any reason why Wesler should not be reinstated. We are further advised that “in answering this question the members of the committee took into consideration * * * whether or not they had received any report of his [Wesler’s] attempting to practice law during the period of his suspension or of engaging in any unethical conduct;” and that “none of the members had heard of any such conduct and the committee’s action was that this application be not opposed by our committee.”

Under the circumstances of this particular case, the provision of the order of suspension “until the further order of the court,” is lifted, and Morris Wesler is permitted to resume practice as an attorney-at-law of this state. Let such order be entered.


text:
    IN THE MATTER OF THE APPLICATION OF JOSEPH F. NARDIELLO FOR LEAVE TO TAKE THE BAR EXAMINATIONS.
    Argued May 3, 1938
    Decided June 4, 1938.
    Before Justices Trenchard, Parker and Perskie.
    For the applicant, John J. Clancy.

    For the Essex County Bar Association, Milton M. Unger.

   Per Curiam.

The application is denied.


text:
    IN THE MATTER OF DANIEL A. MARINARO FOR LEAVE TO TAKE THE BAR EXAMINATIONS.
    Argued May 3, 1938
    Decided June 4, 1938.
    Before Justices Trenchard, Parker and Perskie.
    For the applicant, Frank C. Scerbo.

    For the Morris County Bar Association, Elmer King, Jr.

   Per Curiam.

The application is denied.


author: Hartshorne, C. P. J.

text:
    Essex County Orphans Court.
    IN THE MATTER OF THE ESTATE OF STANLEY S. HOLMES, DECEASED.
    Decided August 4, 1938.
    For the executor, Fidelity Union Trust Company, Hood, Lafferty & Campbell.

    For the United States of America, John J. Quinn, United States attorney (by Charles A. Stanziale).

    For A. J. Volk Company, Rudolph Schroeder.

    For Florence B. Holmes, widow, Joseph E. Conlon.

   Hartshorne, C. P. J.

In the above insolvent estate, the question must be determined, in view of the shortage of assets, as to the relative priorities among the claims, all of which are preferred, of the United States government, for income taxes, of the undertaker, for funeral expenses, of the widow, for incidental funeral expenses, such as the burial plot and monument, and of the executor and its counsel, for commissions and allowances. All concede that the funeral expenses, incurred by both the undertaker and the widow, were reasonable and in conformity with the decedent’s station in life, and that the commissions and counsel fees asked are also reasonable, in view of the services rendered.

Such priorities were established at common law, in general, as follows: (1) funeral expenses, assuming they were considered charges against the estate, and not mere debts; (2) administration expenses; (3) taxes. But these common law priorities are, of course, subject to statute, and many such statutes have been enacted. At the time the decedent died, April 1st, 1935, it was provided in this state that, “judgments entered of record against the decedent in his lifetime, funeral charges and expenses, and the physicians’ and nurses’ bills during the last sickness, shall have preference, and be first paid out of the personal and real estate of the testator or intestate.” Pamph. L. 1916, p. 62.

It was further provided that the estate assets, in case of insolvency, should be distributed, “the preferred debts, and the reasonable allowance which may be decreed by the court to the executor or administrator for care and expenses, being first paid.” 3 Comp. Stat. 1910, tit. “Orphans Court,” p. 3852, ;§ 110.

The provisions of the Eevised Statutes are substantially identic. Rev. Slat. 1931, 3:25-2-51.

It has long been held in this state, in the light of these statutes, that “the claim for funeral expenses is not to be regarded as a debt at all, but as a charge upon the estate. Though grouped in the statute with other claims, also preferred, they are entitled to preference over those claims, as they are at the common law. The statute does not take away the absolute preference which the common law accorded. * * * The reason for such absolute preference still exists in full force. The dictates of humanity, no less than the decencies of enlightened society, demand that the reasonable funeral expenses and the physician’s bill of the last sickness of the deceased debtor be preferred in payment to all other claims or debts.” Sullivan v. Horner, 41 N. J. Eq. 299; Young v. Conover, 120 N. J. L. 261; 199 Atl. Rep. 390; 11 R. C. L., tit. “Executors,” § 289; 24 C. J., tit. “Executors,” §1153.

It is well settled that, under ordinary circumstances, reasonable expenditures for a burial plot and the erection of a monument are proper. Griggs v. Veghte, 47 N. J. Eq. 179. Nor would it seem to be material whether these necessaries were ordered by the representative of the estate or bv a third party, such as the widow, as long as they were, in fact, necessary and proper. Sullivan v. Horner, supra. And the mere fact that the estate was insolvent would not seem to make a place for burial and the marking of the grave any less essential than the funeral itself, though, of course, the expenditures therefor must, under such circumstances, be more carefully scrutinized. See note to Wilson v. Staats, 33 N. J. Eq. 524; 34 C. J. 92; Boyer v. Cole, 143 Atl. Rep. (Delaware) 489; Crapo v. Armstrong, 17 N. W. Rep. (Iowa) 41.

In like manner, the expenses attendant upon administration, including proper counsel fees, are considered a prior charge against the estate, not a mere debt. Haines v. Price, 30 N. J. L. 480, 484; Fitz Randolph v. Fitz Randolph, 121 N. J. Eq. 380; 189 Atl. Rep. 923.

While in the Pitz Randolph case the court does say that administration expenses “must and would be paid first,” it is quite clear that the court does not thereby mean that same have priority over funeral expenses. Por the court immediately thereafter alludes to the rule that “funeral expense is deemed a first paramount charge.” All that the Pitz Randolph case, in fact, holds is that administration expenses must be paid first, before the ordinary creditors of the estate are satisfied.

As to taxes, they were, under the old common law, considered as debts due the Crown, and, as such, subject to funeral and administration expenses. 24 C. J. 92. It has since been settled, however, that “a tax, in its essential characteristics, is not a debt,” but a “charge upon the land.” Camden v. Allen, 26 N. J. L. 398; Brunner v. Morrison, 133 N. J. Eq. 224, 227; 196 Atl. Rep. 716.

Hence, the provisions of the federal statutes, requiring executors first to satisfy debts due to the United States, would seem inapplicable. Rev. Stat. 3466-7, as amended by Statutes 1934, § 518. What, then, is the status of this charge upon the land, as distinguished from a mere debt, even if to be paid before other debts? Por there is no question that the similar charges upon the estate on behalf of funeral and administration expenses are to be paid before all other mere debts.

It has been held in this regard that a tax priority rests not upon the mere sovereign prerogative, but on the statute. United States v. Middle States Oil, 18 Fed. Rep. (2d) 231. It is provided by the Congress, as to federal internal revenue taxes, that “if any person liable to pay any tax, neglects or refuses to pay the same after demand, the amount shall be a lien in favor of the United States from the time when the assessment list was received by the collector * * March 4th, 1913, chapter 166, 1937 Statutes 1016; U. S. Compiled Statutes 1918, tit. 35, ch. 2, § 5908.

What then is the status of this tax lien with relation to funeral and administration expenses, themselves charges against the estate? True, in case of conflict, the federal statute is paramount. But, on the other hand, if we construe the federal statute strictly, as we must, since it is in derogation of the common law, we find nothing in the statute which says that this tax lien shall be prior to the similar charges or liens for funeral and administration expenses. Such, indeed, is the implied construction placed by the federal courts upon this very lien act:

“It is quite another question whether the United States is entitled to priority in enforcing the payment of a claim for taxes. If any such priority exists, it plainly does not rest upon statute, for there is no legislation by Congress upon that subject and never has been any, except to create a lien, as hereafter appears” (the court then citing the above Lien act). Liberty Mutual Insurance Co. v. Johnson Ship Yards Corp., 6 Fed. Rep. (2d) 752, 755.

While the court there concludes that in an equity insolvency proceeding, a claim for income tax is entitled to priority over the claims of unsecured general creditors, it apparently would hesitate to hold such tax to have priority over claims whose priority to taxes had never before been questioned. For it is not a question of the priority of one holding a lien over an ordinary creditor, but as to priorities between those each of whom hold different liens. And it has been the undeviating rule that the decent burial of a citizen’s mortal remains is first in importance, next the marshaling of his assets for proper distribution, and that these take preference even over the lien of a judgment obtained of record against the decedent in his lifetime. Similarly, public policy would seem to require them to retain their ancient priority over a lien granted for taxes, at least in the absence of a clear expression of the sovereign will to the contrary.

Nor would it seem material that the 1933 tax became a lien before death, the others after death. For even that lien which pre-existed death is on all fours in that regard with the lien of a judgment obtained of record against the decedent in his lifetime, the which is itself subject to funeral and administration expenses.

In conclusion, it would, therefore, appear that the priorities for payment in the above estate are as follows: (1) funeral expenses, including burial plot and headstone, all concededly proper in amount; (2) executor’s commissions and counsel fees, both also conceded as proper in amount, and (3) claim of the United States government for income taxes for the years 1933, 1934, 1935 and 1936.


author: Rosecrans, C. P. J.

text:
    Warren County Orphans Court.
    IN THE MATTER OF THE APPEAL FROM THE ORDER OF THE SURROGATE OF THE COUNTY OF WARREN ADMITTING TO PROBATE A CERTAIN PAPER-WRITING AS THE LAST WILL AND TESTAMENT OF EDWARD MESSACH, DECEASED.
    Decided August 10, 1938.
    For the appellants, Demarest & Roth (Archie Both).

    For the respondent, George M. Shipman, Jr.

   Rosecrans, C. P. J.

(Orally.) This is an appeal from the probate of the will of Edward Messach, taken by certain interested parties. The facts indicate that the decedent was brought to a hospital in Stroudsburg, Pennsylvania, on June 1st, 1938, at ten-thirty o’clock in the evening as a very sick man in the words of his physician, Dr. Howard Ott. On the following day at about three o’clock in the afternoon, the sole legatee mentioned in the will, one John K. Allen, brought the proposed will from the office of a scrivener at Portland, Pennsylvania, to the hospital room where the decedent was in bed. He was then seriously ill from pneumonia and died early the next morning, June 3d, 1938. The testimony of the two subscribing witnesses fails to disclose any publication of the will whatsoever by the testator. The statute, Bev. Slat. 1937, 3:2-3, provides that “a will to be valid shall be in writing and signed by the testator, which signature shall be made by the testator, or the making thereof acknowledged by him, and such writing declared to be his last will, in the presence of two witnesses present at the same time, who shall subscribe their names thereto, as witnesses, in the presence of the testator.” Neither of the subscribing witnesses has in any way indicated that the testator published or declared this paper-writing to be his last will in their presence at the time of making his mark and prior to the time that the subscribing witnesses affixed their signatures as such. The decedent was then too sick to write his name. The sole legatee, John K. Allen, was produced as a witness and stated that everything was done at the time of the signing of the will in substantially the manner described by the two subscribing witnesses. He also testified that he read the will twice to the proposed testator before the witnesses entered the room but qualified this by stating that he thought one of the subscribing witnesses was present in the room at the time of one of the readings. In such particulars only does his testimony conflict with that of the subscribing witnesses and in no way does it indicate that there was any publication by the testator of this will in the presence of both subscribing witnesses before they affixed their names as such. The lay scrivener testified that he drafted the will in the afternoon of June 2d, 1938, from information given him by the decedent on several occasions during the week or two preceding and that it was drawn in conformity with instructions so given him by the proposed testator. Such testimony of the legatee and the scrivener does not satisfy the requirements of the statute. The law is clear that there must be, at the time of execution, some word or unmistakable act by the testator, or by someone in his presence to which he gives a sign of his assent, manifesting to the subscribing witnesses that the testator knew and wished them to know that he was executing his will. A long line of decisions support these views. The order of the surrogate admitting this paper-writing of Edward Messaeh to probate will be reversed and the letters testamentary revoked.


author: John J. Stahl, Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen's Compensation Bureau.
    FREDERICK J. NELSON, PETITIONER, v. SAMUEL B. TILLOU AND DANIEL W. TILLOU, EXECUTORS OF THE ESTATE OF ABIJAH F. TILLOU, RESPONDENTS.
    Decided August 5, 1938.
    For the petitioner, Joseph Brody (David Roskein, of counsel).
    For the respondent, Frank W. Long.

   & ^ ❖

From the testimony adduced, T find that the petitioner was an employe of the respondents, Samuel B. Tillou and Daniel W. Tillou, executors of the estate of Abijah F. Tillou, being employed by them as a carpenter in the repair of properties owned by the said estate or acquired by it through purchase and foreclosure. The executors were engaged in the management, operation and maintnance of the said real estate.

I further find that the petitioner received a daily wage of $6 and under the act, is entitled to the compensation rate of $20 per week.

On the day in question, April 24th, 1935, the petitioner was engaged in repair work on property owned by the respondents, at No. 102 Ridgewood Road, South Orange, New Jersey; he was preparing a scaffold or rigging in order to insert certain clapboards preparatory to the painters coming on the job. While so doing, he fell from either the scaffold or the ladder close by, a distance of about six feet to the ground, striking his shoulders, head and body. This accident obviously arose out of and in the course of petitioner’s employment with the respondent. The respondent also had actual knowledge of this occurrence. Petitioner got up of his own accord and was considerably dazed. He was immediately taken to the office of Dr. John G. Merselis by Ralph Tillou. The petitioner’s complaints of pain were referable to the back of his neck, head and shoulder. He thereafter was treated by Dr. Merselis who administered medication and physiotherapy. Dr. Marselis arranged to have X-rays taken at the Orange Memorial Hospital under the supervision of Dr. George Reitter, on May 11th, 1935.

The testimony discloses that prior to the said accident, the petitioner was, to all outward appearances, in apparent normal, good health. He was a robust and hard working man. This testimony was substantiated by a number of lay witnesses who appeared on his behalf. The testimony further discloses that since the said accident, the petitioner walks with a guarded and slow gait, holding his neck in an abnormal position. He appears to be a semi-invalid, with pain and associated symptoms referable to the region of his neck. The testimony further discloses that there appears a stiffness in the neck muscles and a loss of mobility of the neck. This, the petitioner ascribes to his accident.

There appeared to be a sharp conflict in the medical viewpoint between the several physicians representing the respective parties with respect to the nature and extent of disability.

I have carefully reviewed the testimony of the various physicians adduced on behalf of the parties and find as a fact that the X-rays taken indicate that prior to the said accident, petitioner had an osteo-arthritis and a beginning Paget’s disease. Paget’s disease is a condition of slow progress, but due to the slowness of the normal progress of the condition, was and is not causing the disability from which the petitioner is suffering. I feel that as a result of the said accident, the petitioner sustained a separation of the arthritic bone formation in the cervical spine, causing the same to break away and become separated, sustaining what is commonly known as a sprain fracture. In reality, it is a separation of the bony structure previously weakened by osteoarthritis. Accompanying the separation was also a definite soft tissue injury, which superimposed upon the underlying bony structure, is producing his present incapacity. I find as a matter of fact that the petitioner’s Paget’s disease has not been aggravated by the trauma. I further find that the trauma produced a disability from which the petitioner is now suffering to the soft tissue, and bony damage in the cervical region. It is here where the petitioner has his greatest complaints. This was the area traumatized and to which Dr. Merselis and Dr. Sherman rendered their treatment. Here the objective evidences of his disability are most marked. Such a disability superimposed upon a structural weakness is compensable. There is no doubt that such a disability exists.

I have had an opportunity to observe the petitioner on the stand and in court during the many days of trial. Prom my personal observations and from the testimony of the physicians, I find that the petitioner has a marked abnormality in the region of his neck manifest by the position in which he holds the same and by objective evidences in the musculature thereof. This is borne out by the testimony of the physicians who testified on his behalf, who went into considerable detail in describing the condition presented.

After carefully considering all the testimony adduced by the various witnesses, I am of the opinion that the petitioner did. on April 24th, 1935, while in and about his employment, suffer an accidental injury as he described. The work in which the petitioner was engaged at the time was in the usual course of his duties as a carpenter. The evidence clearly indicates that prior to the said accident, the petitioner had an underlying condition of osteo-arthritis which was not disabling and produced no symptoms discernible to the petitioner. The evidence further indicates that the fall sustained by the petitioner caused a separation of small bony fragments in the region of the fifth and sixth cervical vertebrae present as a result of the said pre-existing osteo-arthritis. This was accompanied by soft tissue damage to the musculature thereof, producing the symptoms which the petitioner complained of. These were corroborated by the objective evidences of injury and disability discernible by several physicians who treated and examined the petitioner. The under-hung physical structure gave way under the stress of the said fall. It is my opinion that the said trauma, superimposed upon the underlying osteo-arthritis, produced the disability in the region of the neck from which the petitioner is now suffering. For the said disability compensation is recoverable under our act. Mr. Justice Heher very clearly expressed the thoughts governing my findings when he stated in the case of John Prino v. Austin Co., 120 N. J. L. 19; 197 Atl. Rep. 731, the following:

“The criteria of a eompensible accidental injury are: First, was the employment one of the contributing causes without which the accident would not have happened; and, second, was the accident one of the contributing causes without which the injury would not have been sustained. In appraising the evidence, probability and not certainty is the touchstone.”

The disability from which the petitioner is now suffering referable to his neck, was brought on by reason of the accident sustained by him. • The symptoms referable thereto are marked and are disabling and interfere with the petitioner’s ability to maintain his head in a normal position, and interfere with his ability to work, not only as a carpenter, but in a limited way in his other endeavors.

I find that the disability produced by the said accident disables the petitioner to the extent of twenty per cent, of partial permanent total disability.

Hi H* * ❖ ❖ ❖

I further find that the petitioner shall be entitled to receive compensation for temporary disability from April 24th, 1935, to July 17th, 1935, a period of twelve weeks.

H< H« H* H« ❖ H* H*

John J. Stahl, Deputy Commissioner.


author: John C. Wegner, Referee.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    GEORGE D. LEARY, Sr., PETITIONER, v. PRUDENTIAL INSURANCE COMPANY OF AMERICA, RESPONDENT.
    Decided August 10, 1938.
    For the petitioner, James J. Carroll.

    For the respondent, James J. Slceffington.

   í¡í & % % % ;Jj

The petitioner having been duly sworn and having testified that he had been in the employ of the respondent company for approximately twenty-two years as an agent, assistant supervisor and salesman and that on March 22d, 1938, and for sometime prior, thereto, it was his work to collect premiums in a certain specified locality and also to sell new insurance and take care of death claims and that in furtherance of his work he was furnished by the respondent company with a collection book, application for insurance, insurance amendments to contracts (forms), advertising literature and that on March 22d, 1938, after having made his entries in his book before leaving the house and having on his person a sum of money belonging to the respondent company which money he had collected the day before and having: on his person the collection book, applications, advertising literature, &c., while descending the steps of the porch of his home located at hTo. 413 Liberty avenue, at approximately eight-twenty a. m., and intending to go to the office of the respondent company, he slipped and fractured the patella of his right knee, and that he continued to work throughout the day of March 22d, 1938, and on March 23d, 1938, he was unable to use the right leg and he notified the company by sending his wife with his various books, &c., to the company and that, thereafter, he was treated by Dr. Behrens, who operated on the right leg; that he had X-rays taken by Dr. Perlberg and that he was hospitalized in the Fairmount Sanatorium in Jersey City and that since March 23d, 1938, he has been unable to return to his work.

*******

And Dr. Joseph Koppel, testifying on behalf of the petitioner and Dr. Anthony J. Watman testifying on behalf of the respondent, were both of the opinion that the petitioner was temporarily disabled at the present time and would so continue for an approximate period of four to six more weeks.

I do find and determine from the facts in the case that the petitioner sustained an injury in an accident arising out of and in the course of his employment with the respondent on March 22d, 1938, and that he is entitled to compensation benefits for temporary disability from March 23d, 1938, up to and including the present time and is to be continued on temporary disability until September 15th, 1938, at which time further medical testimony is to be taken to determine whether temporary disability has ceased and if so, to determine the amount of permanent disability, together with other allowances to be made.

***** * *

John C. Wegner, Referee.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    VIOLA LACY, WIDOW OF JAKE LACY, PETITIONER, v. UNDERPINNING AND FOUNDATION COMPANY, RESPONDENT.
    Decided August 11, 1938.
    For the petitioner, Nathan Rabinowitz.

    For the respondent, James J. Carroll.

   The petitioner, Yiola Lacy, having been duly sworn and having testified that she was married to the deceased on October 31st, 1917, in Savannah, Georgia, and that sometime thereafter, she with her husband moved to Philadelphia in the State of Pennsylvania and that from approximately 1925 or 1926, she resided in that city with her husband at No. 604 Christian street; and that in 1934, her husband, Jake Lacy, came to the city of New York where he procured a position as a janitor in an apartment house and that after the petitioner had remained at New York for a period of two months during which time she did not live with her husband, but stayed at a boarding house, she returned to the city of Philadelphia at the address hereinbefore set forth where she has continued to remain ever since. That she knew that her husband received employment with the respondent company but she did not know when this employment started and that from the time she returned to Philadelphia, her husband sent her no less than $15 for her support every week right up to the time of his death, and also having testified that her apartment consisted of a bedroom, living room and kitchen, located on the third floor of No. 604 Christian street in Philadelphia, Pennsylvania, and that her husband visited her at regular intervals in Philadelphia and having listed some of her expenses as follows: $12 a month for apartment in Philadelphia, food for herself $3.50 a week, clothes, $10 per month, gas and electric $3.50 per month and insurance $1.65 per month and also having testified that she did not know the address of her husband in New York but that at times she knew he lived with his sister and also that she did not attend the funeral of her husband, nor, had she ever visited his grave, nor, in fact did she know where he was buried and that on various occasions she would do some housework in Philadelphia but that she did this only because time hung heavy on her hands and not because she needed the money and a specimen of her handwriting having been taken while she was on the stand and she having written the name of Viola Johnson and having been confronted with a permanent registration certificate of voters, containing the name Viola Johnson and the address No. 604 Christian street, third floor, Philadelphia, Pennsylvania, together with a certificate of permanent registration of voters, containing a signature of one, Josie Johnson, No. 604 Christian street, third floor, Philadelphia, Pennsylvania, and having denied that the same was her signature or that in fact she ever heard of a person by the name of Josie Johnson or Viola Johnson and having been confronted with an application for gas and electric service for the third floor of No. 604 Christian street, issued to one Josie Johnson and having denied that said application was in the name of any person known to her and:

Ida Jackson, having been duly sworn as a witness on behalf of the petitioner and having testified that she informed the petitioner of the death of her husband and that on occasions she visited the petitioner with the deceased in the city of Philadelphia and:
Leroy McGrant, having been duly sworn as a witness on behalf of the petitioner and having testified that he had known the Lacys since 1924 and had visited at the apartment at Yo. 604 Christian street, Philadelphia, Pennsylvania, and that he said the deceased gave money to his wife and:
One Elsie Lacy having been called as a witness on behalf of the respondent and having testified that she had lived with the deceased in Philadelphia for about six years and had come to Yew York with him as his wife and continued to live at the apartment house where he worked as a janitor and that she was held out by the deceased as his wife and that the deceased started at a salary of $50 a month and sometime later received an increase of $60 a month while working as a janitor and that out of this money, all household expenses were paid as well as clothing and other expenses and that a baby was born to her, the father of which was the deceased and which baby died shortly after birth and that she made all arrangements for the funeral together with the deceased’s sister and that she attended the funeral and designated the place where the body of the deceased was buried and:
The person taking the affidavit on the certificate of permanent registration of voters for the city of Philadelphia having been duly sworn and having testified on behalf of the respondent and the certificate having been offered in evidence and the representative of the Philadelphia Gas Works having been duly sworn and testified as a witness on behalf of the respondent and the application for gas for the third floor apartment of Yo. 604 Christian street, Philadelphia, Pennsylvania, having been offered and received in evidence; and having carefully considered all of the testimony submitted in the ease, together with the various exhibits offered in evidence :
I do find and determine that the petitioner, Viola Lacy, was lawfully married to the deceased on October 31st, 1917, in the State of Georgia and that she lived with the deceased as husband and wife to the year, 1934; that, thereafter, he came to Yew York and she continued to reside in Philadelphia living separate and apart from him and from that time to the date of his death she was not dependent on him. The uncontradicted testimony is that from 1934 he lived with the witness known as Elsie Lacy, earning from $50 to $60 per month which would make it impossible for the petitioner to' receive as she testified, the sum of $15 a week.

In my opinion from the proof as shown the petitioner resided at 604 Christian street, Philadelphia, and that she assumed the name Viola Johnson. This is corroborated by the application filled for gas service with the Philadelphia Gas Works Company and the certificate of permanent registration. I am convinced that from the testimony that Viola Johnson and the petitioner, Viola Lacy, are one and the same person.

I, therefore, feel from all of the facts established in this case that the preponderance of evidence is overwhelmingly in favor of the respondent. That the petitioner for a considerable time prior to decedent’s death was not a member of his household, in no way dependent upon him for support and neither did he in any way contribute to her support, and in accordance with this finding:

It is * * * ordered that the petition filed herein be and the same is hereby dismissed.

John C. Wegner, Referee.


author: Woods, C. P. J.

text:
    Gloucester County Common Pleas Court.
    BENJAMIN GREENBERG AND JOSEPH GREENBERG, TRADING AS KING KARD OVERALL COMPANY, PLAINTIFFS-APPELLEES, v. DAVID M. SEIDENBERG, DEFENDANT-APPELLANT.
    Decided August 9, 1938.
    For the defendant-appellant, Ernest Redfield.

    For the plaintiffs-appellees, Maurice L. Praissman.

   Woods, C. P. J.

Ernest Eedfield, Esquire, counsel for David M. Seidenberg, defendant-appellant, raises a point of law in this court on which there appear to be very few New Jersey precedents. In his argument he is answered by Maurice L. Praissman, attorney for plaintiffs-appellees. The attorney for the defendant-appellant asks this court to direct a verdict of no cause for action, predicated upon the following facts:

Facts.

Counsel for both sides agree that judgment was entered in the Small Cause Court before Isaac Kotler, Esq., justice of the peace, on September 27th, 1928, in favor of the plaintiffsappellees for $110.73 damages, and $19.95 costs. Appeal was perfected to this court. On December 2d, 1931, defendant-appellant was adjudicated a bankrupt by the United States District Court for the District of New Jersey, in which proceedings, plaintiffs-appellees were scheduled as a creditor and received notice of the bankruptcy hearing. On March 8th, 1932, defendant-appellant was discharged in bankruptcy by the United States District Court for the District of Mew Jersey from all debts and claims which were made provable by the Bankruptcy act against his estate and which existed on December 2d, 1931, the date of his adjudication in bankruptcy.

At this juncture the question to be determined is whether or no the plaintiffs-appellees should be permitted to litigate to final judgment. This court is of the opinion -that they should be permitted so .to do.

As TO THE BkIEES FlLED.

We have examined the briefs filed by the defendant-appellant, the answer by the plaintiffs-appellees, and the reply of the defendant-appellant. We have also examined other authorities than those cited.

Section 16 of the Bankruptcy act of 1898 and likewise United States Code Title 11, chapter 3, section 34, provides as follows: “The liability of a person who is co-debtor with, or guarantor or in any manner a surety for a bankrupt shall not be altered by the discharge of such bankrupt.”

In re Marshall Paper Co. (Circuit Court of Appeals, First Circuit, 1900), 102 Fed. Rep. 872; 4 Am. B. R. 468, the principle is laid down as follows: “While a discharge will release the personal liability of bankrupt, it does not affect secondary liabilities nor prevent a creditor from taking judgment against bankrupt in such limited form as will enable creditor to enforce secondary liabilities.”

“A bond given by defendant (who later is adjudged bankrupt) to discharge an attachment, the condition of which is to pay amount the plaintiff shall recover on his writ, or any special judgment entered in said action, is in the nature of an independent contract, the effect of which is to discharge the lien on the goods resulting from the attachment, and a discharge in bankruptcy of the defendant does not discharge the surety on the attachment bond. Manufacturers’ Finance Corp. v. Vye-Neill Co. (Circuit Court of Appeals, First Circuit, 1933), 62 Fed. Rep. (2d) 625; affirming (District Court, Massachusetts, 1930), 46 Id. 146; 17 Am. B. R. (N. S.) 69.

“It is sufficient to say that he (obligee in attachment bond) has substantial rights against the sureties not affected by the bankruptcy proceedings, that he should be permitted to litigate to final judgment in the attachment suit in the state court, but, of course, can have no execution issued against the bankrupt upon any judgment he may recover therein.” Brown v. Four-in-One-Coal Co. (Circuit Court of Appeals, Sixth Circuit, 1923), 286 Fed. Rep. 512; 2 Am. B. R. (N. S.) 569.

“Bankruptcy court may properly permit attachment creditor, where bankrupt has given bond, to prosecute, his action to judgment against bankrupt for purpose of perfecting his right of action against surety, but no execution will issue upon judgment against bankrupt.” In re Maaget (District Court, New York, 1909), 173 Fed. Rep. 232; 23 Am. B. R. 14.

Counsel for plaintiffs-appellees cites Butler Bros. v. Twineham, 20 A. B. R. (N. S.) 551; 7 Pac. Rep. (2d) 531, decided January 30th, 1932. I have examined this case and have read the entire report. Here it appears that one Peter Twine-ham was indebted to Butler Brothers in the amount of $271.11. Judgment was returned against him on March 29th, 1929, in the City Court of Kansas City. Twineham took an appeal to the District Court on June 1st, 1929, and filed an appeal bond which was signed by Melvin E. Buck as surety. The bond was in the usual form and recited that the signers “bind ourselves to said plaintiff, in the sum of $550,” conditioned upon the defendant’s prosecuting his appeal to effect and without unnecessary delay, and “should satisfy such judgment and costs as may be rendered against him.”

The substance of the appeal bond in that case was not unlike the appeal bond filed in the present case. The court in that ease concluded:

1. That the discharge in bankruptcy does not destroy the debt, but merely bars collection thereof.

2. That discharge in bankruptcy is personal to the bankrupt and does not release surety for bankrupt’s obligation from liability.

3. Where the defendant, pending determination of appeal from adverse judgment, was adjudged bankrupt and subsequently discharged, surety on appeal bond executed prior to bankruptcy proceedings was held, nevertheless, liable to judgment creditor.

Admittedly, there is some conflict of law, but the better reason tends to convince this court that an appeal bond is given to protect the judgment creditor for just such exigencies.

At this time, to be sure, the court is not called upon to determine the liability of the surety, but the court is called upon to determine whether or not the plaintiffs-appellees may prosecute their action on appeal. This we feel the plaintiffisappellees have a right to do. Should the plaintiffs-appellees succeed in this court, then the court will have a right to mold its judgment and verdict in conformity with the proofs under the Bankruptcy law.

An order permitting the plaintiflis-appellees to litigate to final judgment, accordingly will be entered.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    JACK STELLAS, BY GEORGE STELLAS, AS NEXT FRIEND, PETITIONER, v. THE WESTERN UNION TELEGRAPH COMPANY, INCORPORATED, RESPONDENT.
    Decided June 4, 1938.
    For the petitioner, Moore & Butter.

    For the respondent, Bolte & Miller.

   This is a proceeding brought by Jack Stellas, as petitioner, and against The Western Union Telegraph Company, Incorporated, as respondent, seeking compensation under an act of the legislature of the State of New Jersey, entitled “An act prescribing the liability of an employer to make compensation for injuries received by an employe in the course of employment, establishing an elective schedule of compensation and regulating procedure for the determination of liability and compensation thereunder,” approved April 4th, 1911, together with the several acts amendatory thereof and supplemental thereto.

A petition and answer were duly filed and the matter regularly came on for hearing before me, Harry S. Medinets, a deputy commissioner of compensation, of the Workmen’s Compensation Bureau, on April 14th, 1938.

From the testimony produced before me, I find that Jack Stellas, the petitioner, was employed as a bicycle messenger by the Western Union Telegraph Company, the respondent. He was required to report for work iu uniform by seven-thirty in the morning for the purpose of delivering telegrams. On July 13th, 1937, he arrived at respondent’s place of business just before seven-thirty A. m. He changed into uniform and reported for duty. After doing so, he noticed that the tire of his bicycle had a slow leak and was in need of repair. As a condition of his employment, young Stellas was required to provide his own bicycle and keep the same in a good state of repair. The office of the Western Hnion kept some bicycle repair supplies, but in this instance, however, it was found necessary that Stellas go to a bicycle shop to make the needed repairs. Stellas asked permission of his immediate superior to leave and make the necessary repairs to put the bicycle in good working condition. Hpon receiving his superior’s approval and permission to absent himself, since there were a number of boys ahead of him who would be available to deliver any messages which came in, he proceeded to the bicycle repair shop. While en route to the store, he was struck and injured by an automobile. His claim for compensation is predicated upon the fact that this injury arose out of and in the course of his employment.

In construing the Workmen’s Compensation act, it should be remembered that the statute is remedial and should be liberally and broadly construed. O’Mara v. Kirsch, 106 N. J. L. 151; 147 Atl. Rep. 511; Schmid v. Stanton Forging Co., 104 N. J. L. 471; 142 Atl. Rep. 4; Bodnarik v. Empire Floor, &c., Co., 8 N. J. Mis. R. 718; 151 Atl. Rep. 908; Steers, Inc., v. Turner Constr. Co., 104 N. J. L. 189; 139 Atl. Rep. 42. Therefore, what accidents should be held compensable “as arising out of the course of employment” have been given a broad interpretation.

In Hall v. Doremus, 114 N. J. L. 47 (at p. 50); 175 Atl. Rep. 369, which case is also cited by respondent, the court said:

“And it would seem that on principle, even though the accident resulted from the doing in an emergency of something that is not strictly within the scope of the emplojunent, it may, nevertheless, be one that arises out of and in the course of the employment.”

And in Bryant v. Fissell, 84 N. J. L. 72; 86 Atl. Rep. 458, another case relied on by the respondent, the court declared (at p. 70) :

“And a risk may be incidental to the employment when it is either an ordinary risk directly connected with the employment or an extraordinary risk which is only indirectly connected with the employment owing to the special nature of the employment.”

It may be noted here that respondent could and should have foreseen, because of its long experience in employing boys with bicycles, that a bicycle tire may, on occasion, become flat and the case above cited is certainly controlling on this point. In the two cases last cited, compensation was awarded.

One of the earliest cases arising under the act was Terlecki v. Strauss, 85 N. J. L. 454; 89 Atl. Rep. 1023; affirmed, 86 N. J. L. 708; 92 Atl. Rep. 1087, where a girl’s hair was injured by a machine while she was combing it preparatory to going home after she had finished work. Mr. Justice Swayze held that the accident was compensable as arising out of and in the course of her employment. “The preparation reasonably necessary for beginning work after the employer’s premises are reached, and for leaving when the work is over, is part of the employment. * * * The employment was not indeed the proximate cause of the accident, but it was a cause in the sense that but for the employment, the accident would not have happened. The employment was one of the necessary antecedents to the accident.” The opinion in this case certainly applies in its entirety to the case at bar.

Bryant v. Fissell, supra, also enunciated the principle that, “An accident arises in the course of employment if it occurs while the employe is doing what a man so employed may reasonably do within a time during which he is employed and at a place where he may reasonably be during that time.” Foley v. Home Rubber Co., 89 N. J. L. 474.

Under these principles, it is not necessary that the employe be actually engaged in prosecuting his designated work in order to obtain compensation. He need only be doing some act reasonably necessary and incidental to his employment.

A school janitor, returning home from evening church services, decided to look after the school fires, because of a sudden fall in the temperature. He suffered injury while going home for the school keys. The accident was held compensable. Kromley v. Board of Education, 180 Atl. Rep. 546.

Where part of an employe’s duties was to take milk pails home and wash them, it was held that he was entitled to compensation, after being struck by an automobile while carrying the pails back to the farm. Barkman v. Meyer, 12 N. J. Mis. R. 287; 171 Atl. Rep. 536.

It is indeed possible that a workman may not even be doing acts, incidental to furthering his employment, but actually be doing some action purely for his own personal convenience which may be so closely connected with his employment as to entitle him to compensation. A barge captain who went ashore to get some food, visited a friend for three or four hours and was struck by a train on returning to the barge. It was held he was entitled to compensation. Ramsey v. Leahey, 102 N. J. L. 513; 134 Atl. Rep. 91; affirmed, 103 N. J. L. 501; 135 Atl. Rep. 919.

An employe who was given leave to attend to his own personal affairs and was injured while driving back to work was entitled to compensation. Rachels v. Pepoon, 5 N. J. Mis. R. 122; 135 Atl. Rep. 684; affirmed, 104 N. J. L. 183; 139 Atl. Rep. 923. It is the contention of the respondent that Jack Stellas was on a personal and private mission. Under the above cited case, it would certainly appear that he is entitled to compensation. It is the contention of the petitioner, however, that Stellas was not on his own mission, but was performing a duty necessary to the continuation of his employment. A truck driver, who left his truck to go into a public house to get a pint of beer and who was struck, was held to have met with an accident arising out of and in the course of employment. Martin v. Lovibond, 2 K. B. 227; Salamone v. Ansetta, 16 N. J. Mis. R. 96; 194 Atl. Rep. 798. Some other eases in which the accidents have also been held to have arisen out of and in the course of employment are: Zabriskie v. Erie Railroad Co., 85 N. J. L. 157; 88 Atl. Rep. 824; affirmed, 86 N. J. L. 266; 92 Atl. Rep. 385; Hart v. Wilhelms, 31 N. J. L. J. 13; Hanna v. Erie Railroad Co., 8 N. J. Mis. R. 829; 152 Atl. Rep. 179; Jasnig v. Winter, &c., 115 N. J. L. 320.

However, our case is not nearly as extreme as those cited above. The boy was not doing an errand for his own personal convenience, but an act absolutely necessary and essential if he was to continue in his employment. The contention that he is not entitled to, compensation because he was paid only when he delivered telegrams is not sound. A recent New Jersey case decided that a golf caddy, who was paid only by golfers, but who was under the control of the caddy master in the meanwhile, was entitled to compensation for falling out of a tree which he climbed to pick apples at the caddy master’s request. Bird v. Lake Hopatcong Country Club, 119 N. J. L. 415; 197 Atl. Rep. 287. In our case, the boy had already come under the control of his superior to the extent that it was necessary to ask permission to leave to have his tire fixed.

Much reliance is placed by respondent on the case of Postal Telegraph Cable Co. v. Industrial Accident Com., 1 Cal. (2d) 730; 37 Pac. Rep. (2d) 441; 96 A. L. R. 460, which was decided by a divided court. A dissenting opinion held as follows:

“The latest decision appears to be influenced largely by the temporary and fortuitous change in the personnel of the justices qualified to pass upon it.”

He then cited a case in point from Texas, Maryland Casualty Co. v. Smith, 40 S. W. Rep. (2d) 913, where an employe who had to furnish his own motorcycle, was injured on the way to work and was granted compensation. In the Postal Telegraph case, also, the employe was on his way to work and had not as yet reported. But the Postal case seems to be contrary to the weight of authority, since in most jurisdictions it is held that an employe who must furnish his own vehicle and is preparing for work or is going to or from work is within the scope of his employment. A fireman was killed by carbon monoxide gas from his own automobile, used principally for municipal purposes. He was in his own garage, was overcome while preparing to go to a firemen’s convention, but was, nevertheless, held entitled to compensation. Struve v. Frement (Neb.), 250 N. W. Rep. 663. A salesman likewise killed while preparing his car for use in work the following day was held entitled to compensation. Derleth v. Roach & Seeber Co. (Mich.), 198 N. W. Rep. 948; 36 A. L. R. 472. Several other cases holding that employes while preparing or working on their own vehicles, and in some cases, not having reported for work and while still at home, have been entitled to compensation are as follows:

Kingsley v. Donovan, 155 N. Y. S. 801; Marley v. Johnson & Co. (Iowa), 244 N. W. Rep. (2d) 833; 85 A. L. R. 969; Annotations at 85 A. L. R. 978 and 96 A. L. R. 467.

Tewes v. Sweeney Lithograph Co., 3 N. J. Mis. R. 807, is a case relied on by respondent to dispute petitioner’s contention. The facts in this case are not at all similar and no analogy exists between the Tewes case and the case at bar. Tewes' was repairing his automobile used in Sweeney’s business at three o’clock on a Saturday afternoon. There was nothing in this case to show that the car was being repaired preparatory to going to work. Tewes may have been having his car put in order for the purpose of going on a Sunday afternoon pleasure jaunt. On the other hand, Stellas had already reported to work and was going to have his bicycle fixed, so that he could continue at his job.

Carroll v. Western Union Telegraph Co. (Wash.), 17 Pac. Rep. (2d) 49, is another case strongly relied on by the respondent. This case, petitioner contends, is not applicable. In the first place, this case was not decided under the Workmen’s Compensation act. It was a negligence action by a third party against the Western Union resulting from an injury sustained by the plaintiff who was struck by a motorcycle operated by a messenger boy. Compensation law was in no way involved and the entire action was based on and was decided with reference to the liability of a third person and not to an employe. The liability enforceable in a proceeding under the Workmen’s Compensation act is not one arising out of negligence, but a contractual obligation created by the Compensation act with the consent of both the employer and employe. Winfield v. Erie Railroad Co., 88 N. J. L. 619; 96 Atl. Rep. 394; reversed on other grounds, 244 U. S. 170; Foley v. Home Rubber Co., supra.

“It is based upon the proposition that the inherent risks of the employment should be placed upon the shoulders of the employer, who can protect himself by an addition to the price of his product and so cause the burden ultimately to fall upon the consumer; that the indemnity to an injured employe should be as much a charge upon the business as the cost of replacing or repairing disabled or defective machinery. * * * Under the former system the loss falls immediately upon the employe, who is almost invariably unable to bear it, and therefore, ultimately upon the community, which is taxed for the support of the indigent; and that the former system was uncertain, unscientific and wasteful and festers a spirit of antagonism between employer and employe, which it is the interest of the state to remove.” Weber v. Mahr & Stockhart, 41 N. J. L. J. 207.

The Carroll case might be further distinguished on the ground that the employe had gone out to get horn brackets, which were certainly not absolutely necessary for the continuance of his employment and it cannot be denied that a tiro is absolutely essential to the operation of a bicycle.

Further argument, in view of the above cases, would be needless. It is the contention of the petitioner, and I so find that Jack Stellas, who had reported to work and found it necessary to take his bicycle to the repair shop for tire repairs, was injured while he was in the course of, and that the injury arose out of his employment.

I do hereby find and determine the following additional facts:

1. That the respondent had notice of the accident.

2. That the petitioner earned $5.36 a week at the time of his accident.

3. That the petitioner incurred medical bills amounting to $120, which is a proper charge against the respondent.

4. That there is due the Atlantic City Hospital $104.50 for the necessary hospitalization of the petitioner as the result of said accident.

5. That the petitioner suffered temporary disability from July 13th, 1937, the date of the accident, to September 3d, 1937, a period of seven and three-sevenths weeks, for which he is entitled to compensation.

It is, therefore, on this 4th day of June, 1938, ordered, that judgment be entered in favor of the petitioner and against the respondent.

Harry S. Medinets, Deputy Commissioner of Compensation.


text:
    Warren County Orphans Court.
    IN THE MATTER OF THE ACCOUNT OF THE TRUSTEE OF FREDERICK DAVID HOFF. IN THE MATTER OF THE ACCOUNT OF THE TRUSTEE OF JOHN NORWOOD HOFF. IN THE MATTER OF THE ACCOUNT OF THE TRUSTEE OF MADGE HOFF.
    Decided September 8, 1938.
    For the petitioner, Samuel C. Meyerson.

   Rosecrans, C. P. J.

Petitions for allowance of intermediate accounts were filed by the Iiackettstown National Bank as trustee in each of three cases, all of which arose out of one original estate. They will bo considered together for the purpose of present disposition. These are the third intermediate accounts since the year 1934, it having been the practice of the trustee to make an accounting every two years. The trusts involve in the aggregate about $50,000 and will continue to run for some years — the first for about thirteen years. The accounts indicate that the trustee simply receives the income of the funds and makes a few disbursements during each year. On the allowances of each previous intermediate account, commissions on corpus of one per cent, and upon income of five per cent, were decreed besides counsel fees and costs. The present application is for allowance of these third accounts with additional commissions of one per cent, on corpus and five per cent, on income, together with counsel fees and costs. Counsel for the petitioner indicates that it is the intention of the trustee to account each two years in the future and upon each recurring period to pray for allowance of commissions on corpus as well as on income.

The applicable statute provides that a guardian or trustee shall account “once in three years, and oftener if required.” Rev. Stat. 3 :10-6. Petitioner has suggested no reason why accountings in these estates are oftener required than upon conclusion of the usual three-year period; the records disclose no urgency for more frequent accountings and no interested party has intervened to demand them. It may well be that in accountings which: (1) are complicated; (2) involve a change of beneficiary; (3) involve a change of trustee; (4) involve some material investment changes; or (5) present some other compelling reasons, that more frequent accountings may be desirable. In the absence of some such circumstance the statute should be considered as establishing the three-year period as a legislative declaration of intent and expressing a rule for judicial guidance.

It is true that the provision of an act requiring the first accounting within a prescribed time has been held to be merely directory, but consideration was only given to the non-compliance of a fiduciary to account within the required time. Heath v. Maddock, 81 N. J. Eq. 469; 86 Atl. Rep. 945. 1 Waltzinger N. J. Probate Practice 4. The converse of that proposition now under consideration presents a question of novel impression.

It is also true that no one appeared in opposition to these applications. However, the statute provides: “The court wherein the account * * * is reported shall examine the account * * * • and, if the same is found to be correct * * * decree an allowance * * Rev. Stat. 3:10-15.

Unless it be affirmatively shown that three years have elapsed since the last acconnting or that there is some substantial reason for requiring one oftener, the intermediate accounts of fiduciaries should not be allowed. Any other rule would place in the discretion of the fiduciary the right to file accounts as often as desired. Accountings are not to be discouraged, but they should be kept within the bounds of necessity. It is incumbent upon the court to exercise vigilance and to prevent the imposition of unnecessary expense and undue burdens in the administration of estates.

Obviously it would bo improper at this time to allow further commissions upon corpus in these estates as it would endanger the availability of a sufficient portion for trustee’s future services since under the statute total commissions on corpus cannot aggregate more than five per cent. In re McMillin, 130 N. J. Eq. 432; 185 Atl. Rep. 913.

The applications for commissions on income and for allowance of counsel fees and costs out of assets must presently fail.

The petitions in each of the cases will be denied — the accounts being prematurely filed — but without prejudice to the renewal of the applications at such time as the statute provides.

(Italics supplied.)


text:
    Warren County Orphans Court.
    IN THE MATTER OF THE ESTATE OF JOHN A. MESSLER, DECEASED.
    Decided September 9, 1938.
    For the applicant, Morris, Downing & Sherred (Charles T. Downing).

    For the caveatrix, Smith & Smith (Sylvester C. Smith, Jr.).

   Rosecrans, C. P. J.

Decedent was survived solely by a widow to whom he had been married less than a year, and a daughter by a former wife. Both widow and daughter are of age. Administration was sought by the widow, but the daughter having filed a prior caveat the dispute came before this court for determination.

The applicable statute reads:

“If any person dies intestate, administration * * * shall be granted to the surviving spouse * * * if he or she will accept the same, and, if there be no such person, then to the next of kin of such intestate, or some of them, if they or any of them will accept the same * * Rev. Stat. 3 :7-6.

The immediate source of the revision was:

“If any person die intestate * * * administration * * * shall be * * * granted to the husband or widow * * * or the next of kin of such intestate * * * or to some of them, if they or any of them will accept the same * * *.” Pamph. L. 1914, ch. 47; 2 Cum. Supp. Comp. Stat., 146-27.

The original statute in -this state governing the grant of administration was based upon the English statute of 21 Henry Till, ch. 5, § 3. The act of 1914 (supra), was substantially a duplicate of the English statute. Cramer v. Sharpe, 49 N. J. Eq. 558; 24 Atl. Rep. 962.

The English rule of construction of the statute invested the court with discretionary power to appoint either the widow or next of kin or both (11 R. C. L. 34, § 21), although the widow is usually selected in preference to the next of kin.

The long established and recognized rule in this and other states has been that while the widow has not the exclusive right to administer she will be preferred. Hill's Case, 55 N. J. Eq. 764, 768; 37 Atl. Rep. 952; Kocher’s N. J. Probate Practice 264; 1 Waltzinger N. J. Probate Practice 45; Estate of Runyon, 12 N. J. L. J. 15; 23 C. J. 1036.

The widow contends that the Rev. Stat. (supra) has so changed the previous law that she is now not only first entitled but that she has the sole exclusive right to administer and that it is mandatory upon the court to appoint her.

It is insisted upon behalf of the daughter that the applicable section of the Revision of 1937 (Rev. Stat., supra) did not affect the prior statutory law because the power of the revision commission was limited by the creating act, Pamph. L. 1925, ch. 73, § 2 (Rev. Stat. Vol. I, p. ix), which provided, inter alia, “that no changes shall be made in the phraseology or distribution of the sections of any statute that has been made the subject of a judicial decision by which the construction thereof as established by such decision shall or can be impaired or affected.” Hot so on that ground. It is now immaterial whether or no the revision commission did or did not exceed the power conferred by the law of 1925 (supra). The legislature adopted the work of the revision commission by enacting Pamph. L. 1937, ch. 188 (Rev. Stat. title 1, p. 1). The adopting act provided that this work “is hereby adopted as all the public statute law of the State of New Jersey of a general nature.” It is not to be presumed that the revision commission deliberately exceeded its powers. If they erred, their error unfortunately is now the law. Por courts to hold otherwise and attempt to determine as to each particular section of the revision whether unauthorized changes were made by the commission would lead to uncertainty and endless confusion.

However, there is a well defined rule governing the construction to be accorded changes made in existing law by revision.

“Statutes are not to be construed with our eyes closed to the history which lies back of them. The act is a revision of pre-existing legislation and the intent to change the law in a revision must be clear.” Leonard v. Leonia Co., 81 N. J. Eq. 489, 492; 87 Atl. Rep. 645.

“The intent of the legislature is to be ascertained from the context, the effects and consequence, and the reason and spirit of the law.” In re Murphy, 23 N. J. L. 180, 193.

Measured by such standards the intent of the legislature to effect an uprooting of a practice recognized and established in this state for years is not clear. Rather is it apparent that it was intended to write into the revision the rule of construction of the former statute as enunciated by the courts, that other things being equal the surviving spouse should be given a preference but not an exclusive right to administer. The change was in procedural not in substantive law.

It cannot be successfully contended that any construction of either the present or prior statute would admit of the proposition that the court would be deprived of its inherent power to judge as to the qualification and fitness of an applicant for administration. The statute provides a rule of operation, but confers no absolute right without qualification. An administrator is the trustee for all interested parties, being first the creditors and then those entitled to distribution. The representative should be qualified to administer for the best interests of all concerned. There is a paucitjr of reported opinion in this state on the exact point. In the few cases in which an applicant’s right of preference under the statute was at issue such qualifying phrases were used as “against whom no disqualifying objection exists” and if “fit and competent.” They are referred to in Degnan’s Case, 75 N. J. Eq. 197, 201; 71 Atl. Rep. 668. The authorities from other states are collected in 23 C. J. 1046-1051. What renders an applicant unsuitable ?

The testimony discloses that the widow is improvident and has displayed a want of care and foresight which would be likely to render the estate unsafe in her hands. At the time of the death she was familiar with the fact that the value of the estate was about $10,000 yet incurred funeral expenses of about $2,000 including a casket for $1,750 with apparent indifference.

The widow exhibited a woeful lack of knowledge of ordinary business dealings. Asked upon cross-examination as to the purpose of the surety company bond offered by her upon application for administration she testified that the principal sum of $20,000 would be set aside by the company in a bank for her to draw upon. The administration will involve settlement of accounts of a rather complicated partnership, engaged for a long number of years in the trucking and road contracting business.

There was some evidence that the widow intermeddled with assets of the estate by removing an antique spool bed from the attic of a farm house owned by the decedent to a blacksmith shop near the property where she now resides.

It developed at the hearing that the decedent was the administrator of his first wife’s estate. She died in the year 1931. Ho inventory or accounting was ever filed by him. The administrator’s bond was for $3,000, but the daughter never received anything from her mother’s estate, and it remains unsettled. The legal representative of the present estate will be required to make an accounting for the deceased administrator. Rev. Slat. 3 :10-9. The interest of this widow as the accountant of the deceased administrator of her husband’s first wife’s unsettled estate would be directly antagonistic to her interest as administrator of her husband’s estate. She 'would also thus come into conflict with the interests of the only child of the first marriage, and the person entitled to the major part of her mother’s unsettled estate. Cornpropst’s Appeal, 33 Pa. 537.

The testimony further indicates that antagonism, unfriendly feeling, inharmonious relations and differences exist between the widow and the daughter; that the widow is indifferent to the interests of the estate; that she has expressed a purpose to act arbitrarily without consideration of the daughter’s wishes or best interests. Such have been held to be disqualifications. Warner’s Estate, 207 Pa. 580; 57 Atl. Rep. 35.

The Pennsylvania statute is basically similar to ours and the rule has there been stated to be :

“It is apparent from the decided cases that the appointment of the surviving spouse is not mandatory in all cases. That they have a prima facie right to so act is without question; the register may not lightly set aside anyone within the class entitled and prefer one in a remoter class or a stranger. Appointees as administrators must not possess any of the disqualifying characteristics mentioned.” Friese’s Estate, 317 Pa. 86; 176 Atl. Rep. 225.

And the Washington rule:

“Where the ill feeling existing between those eligible for appointment would be conducive of continuous litigation with resultant loss to the estate, then the court may appoint any suitable person to administer the decedent’s estate. That is, under the facts of this case at bar, the statute prescribing the order in which persons are entitled to administer an estate is not mandatory, and does not prevent the appointment of a stranger as administrator.” Re Thomas, 8 Pac. Rep. (2d) 963; 80 A. L. R. 819, 823.

On behalf of the caveatrix it is proposed that if she be not appointed as sole administratrix that administration should be confided to both widow and daughter which would thus include all of those interested in the distribution of this estate. The widow asserts they could not agree. Joint administration is not ordinarily favored. Runyon’s Estate, 12 N. J. L. J. 15; 23 C. J. 1046. In view of the differences existing between them such procedure would offer no solution, but would tend to invite frequent conflict. Much that .has been pointed out concerning antagonism and hostile interests and which form objections to the appointment of the widow would also serve to disqualify the daughter as sole administratrix.

The testimony as well as the demeanor of the parties leads to the conclusion that the widow is disqualified from being accorded the usual preferential right to administer; that the daughter is also disqualified and that the best interests of this estate will be served by the appointment of a competent impartial administrator.