author: Fielder, Vice-Ordinary.

text:
    In the matter of the estate of Julius Heim, deceased.
    [Decided June 26th, 1944.]

      Messrs. Drewen & Nugent (Mr. John Drewen, of counsel), for the appellant Frederick E. Bauer.

      Messrs. Milton, McNulty & Augelli (Mr. Joseph Keane, of counsel), for the respondents Howard Heim et al.

      Mr. Kenneth J. Dawes and Mr. Constantine Donato, for the respondents Irma Schultz et al.

      Mr. Otto K. Biemenschneider, for the respondent Ruth Heim Gardner.

      Mr. Cyrus W. Lunn, for the respondents Charles L. Heim et al.

      Mr. Jacob Stislein, for the respondent Pauline Roggenbrodt.
   Fielder, Vice-Ordinary.

- Julius Heim died October 29th, 1942. He had executed a will July 15th, 1942, against which no caveat was filed and the will was admitted to probate by the surrogate of Hudson County November 9th, 1942. The proofs show that testator died seized of six parcels of real estate valued at about $6,000 and possessed of personal estate worth about $83,000.

By his will, after providing for payment of his debts, the testator devised five parcels of his real estate to his executor with directions to sell and distribute the proceeds (a) one-third to a nephew and his wife, (b) one-third in trust for the benefit of a grandnephew and (c) one-third in trust for the benefit of another grandnephew. He devised the sixth parcel of real estate to Jeanette Heim, the widow of a deceased brother. The will then set aside $500 for care of a burial plot, devised the plot to his brother Charles and gave the balance of his estate "to my friend and counsellor, Frederick E. Bauer, as a token of my affection and esteem for him over the many kindnesses and favors that he has done for me throughout my lifetime” and appointed Bauer executor. Bauer is a lawyer and the draftsman of the will.

In January, 1943, a petition of appeal from probate was filed by a nephew of decedent, and in April, 1943, a second petition of appeal was filed by another nephew. The petitions of appeal presented the questions (a) lack of testamentary capacity of testator, (b) und{iie influence exerted on the testator by Bauer, and (c) the will not executed in accordance with statutory requirements,, which last named ground was not pressed. On the return day of citations issued to all interested parties, the Hudson Orphans Court referred the appeal to a master to take testimony and report his findings to the court. In the proceedings before the master, all of decedent’s heirs-at-law and next of kin (except a sister who was not a beneficiary under the will) joined in prosecuting the appeal. After taking testimony the master reported that probate of the will should be revoked, and thereafter the Orphans Court, upon the master’s findings, entered its decree December 29th, 1943, confirming the master’s report and adjudging that the paper-writing probated was not Heim’s last will and testament and revoked the letters testamentary issued thereon. This appeal is from that decree and it is submitted on the record sent up from the court below without any further evidence offered. The questions to be determined are whether the testator possessed testamentary capacity at the time of executing the will and whether he was influenced by Bauer in the execution thereof.

The testator was ninety years old at the date of his will and he was a childless widower, his wife having died in 192’}'. He had been an electrotyper and had given up work several years prior to his death. From his earnings and thrift he had been able to build up a substantial estate. He had a habit of making and keeping notes or entries on scraps of paper and on envelopes received through the mail and he had kept a diary for many years and as late as 1931. From his notes and his diary it can be gathered that he was a man of intelligence. His living blood relatives were Charles Heim a brother, Adeline Butterfield a sister, both of whom resided in California many years, and Pauline Eoggenbrodt a sister, who resided near him in Union City; also several nephews and nieces who were children of deceased brothers, some of whom resided at a considerable distance from him. He had been a benefactor to his brothers and sisters in past years and also to his niece Irma Schultz, who was a daughter of his deceased brother Philip, and the testimony, as well as the evidence disclosed by his notes and his diary, show that he believed they had not appreciated his gifts and were intent on getting more money from him; that he had quarreled with them and had no longer a kindly disposition toward them.

After his wife’s death he lived alone in one of the small houses he owned, which houses he had permitted to become dilapidated and run down although he continued to pay taxes on them. His living conditions were dirty and unkempt which conditions he appears to have been unable to remedy because of the physical infirmities from which he suffered in his later years; he had an injured ankle and a diseased leg and in the last year or two of his life he had become incontinent. Police officers were called to his home on three occasions early in July, 1942. On two of those occasions they found him lying helpless on his bedroom floor, and on the third occasion he was lying in his empty bathtub fully dressed. He was conscious on those occasions but declined to answer questions concerning the predicaments in which he was found. Apparently on two of the occasions he had fallen from bed. Because of those incidents (one of which the police reported to Bauer) he was urged by police officers, Anna Boggenbrodt .and Bauer to go to a hospital, but he then declined.

On July 13th, 1942, Anna Boggenbrodt and her husband -went to Heim’s home in response to a telephone call and found him lying on the floor. Mrs. Boggenbrodt is a daughter-in-law of Pauline Boggenbrodt, a sister of Heim. Her testimony as to what occurred that day and the following day may be summarized as follows: She told Heim he could not keep this up, that he was too weak to be alone and should go to a hospital and that Heim agreed and said he wanted to settle his affairs and for her to call Bauer on the telephone, which she did. Heim then talked with Bauer a few minutes and her husband also talked with Bauer and told him Heim 'had consented to go to the hospital and wanted to see Bauer .about settling his affairs. Bauer agreed to come the following morning but did not come until afternoon after Mrs. Boggenbrodt, who was with Heim all that day, had called Bauer on the telephone again. That- afternoon, July 14th, 'Bauer after some casual conversation with Heim, advised Heim to go to the hospital, to which Heim agreed and Bauer ■said to Heim he understood Heim had sent for him to take • care of his affairs and that Heim should make a will. Heim then told Bauer what he wanted done as to his real property ■and Bauer asked what about what is left and Heim said there •was not much. There was a bank statement lying on Heim’s 'bed which showed he had $14,000 in bank and Bauer remarked that it was a lot of money and that Heim should •decide what he wanted done about his money, and Heim said, '“You take it, Fred, and do as you like with it, it is yours.” Bauer replied by asking if there were not some members of Heim’s family he would like to leave it to and Heim said, '“Oh, the wolves, those wolves have had enough, it is yours, Fred, take it and do as you like with it.” Bauer wrote •down what Heim told him and after he had left, Mrs. Boggenbrodt called up Dr. Shapiro, who had been in attendance on Heim and who came about 5 v. m., and she -told the doctor to make arrangements for Heim to go to the hospital. The doctor said he had not been paid for his services and that the hospital’s entrance fee would have to be paid. She called Bauer on the telephone and was told to make out checks for the doctor and for the hospital. She made out checks from Heim’s check book, one for $100 for the hospital and the other for $25 for Dr. Shapiro and after she had explained the checks to Heim in the presence of Dr. Shapiro and of the doctor who had come with the ambulance, Heim signed the checks and she delivered Dr. Shapiro’s check to him. Heim was then taken to the hospital in the ambulance and she went with Dr. Shapiro and entered Heim at the hospital and delivered the hospital check for $100. After going to see Heim in his room, she left for her home. She had never met Bauer prior to July 14th. The will as executed contains the provisions Heim told Bauer he wanted therein.

The contestants discredit Mrs. Roggenbrodt’s testimony because she stated that Bauer had told her husband he would take care of him out of estate funds. But it appears from Bauer’s testimony that the promise was made a week after Heim’s funeral, and before any contest over the will was threatened and it was made because of the help Roggenbrodt and his wife had given Bauer in connection with Heim’s hospitalization and funeral and in giving information Bauer needed for the administration of the estate, and that Bauer had had no conversation with Roggenbrodt on the subject after the contest had started. The will gives to Mr. and Mrs. Roggenbrodt one-third of the proceeds of sale of testator’s real estate, about $2,000, in trust for their son. If the will is not sustained, Mr. Roggenbrodt’s mother, who resides with them, will share in testator’s estate as one of his heirs-at-law and next of kin to the extent of $13,000 or more, so it would seem that if Mrs. Roggenbrodt’s testimony could be affected by a personal interest, that interest would be in favor of her mother-in-law through whom her husband might profit eventually.

Bauer’s testimony as to what led up to the preparation of the will may be summarized as follows: July 13th Mr. Roggenbrodt called him on the telephone and said Heim wanted to talk with him and then Heim told Baner over the telephone that he wanted to see him. Boggenbrodt took the telephone again and said Heim wanted to talk with him. Baner said he would call the following morning, but he was unable to do so and in response to a call from Mrs. Boggenbrodt he said he would see Heim that afternoon, and he did. After some conversation with Heim about going to the hospital, Heim said he was ready to go and would like to fix things the way he wanted them to happen and Bauer said if Heim was ready he would prepare a will for him. Bauer found a piece of paper lying on a table on which he made a note of Heim’s testamentary wishes. After Heim had stated the disposition he desired to make of his real estate and some conversation was had on that subject, Bauer asked what about the rest of his estate and Heim said,-“You take that and do what the hell you want with it. There isn’t much left any more.” Bauer called Heim’s attention to a bank statement lying on a table which showed $14,000 in the bank and said it was quite a sum and asked Heim if he did not have other bank books, to which Heim replied that there were other books in a drawer in a stand. Bauer and Mrs. Boggenbrodt looked in the drawer which was full of various articles, but could not find the books (they were found in that drawer after Heim’s death). Bauer reminded Heim of his brother and two sisters and asked if Heim did not want to do something for them and Heim said, “The hell with them, they are a pack of wolves that got all they are going to get.” Bauer then said, “It is too bad you feel that way. If you want me to have it, that is entirely up to you.” And Heim replied, “This is my will and I am going to make it the way I want it.” Bauer then asked who was going to take care of things and Heim replied Bauer could take care of everything, whereupon Bauer made note that he was to be executor. After some further conversation about going to the hospital Bauer left. Later that day Mrs. Boggenbrodt telephoned Bauer that Dr. Shapiro wanted checks for himself and the hospital and Bauer told her to draw the checks and have Heim sign them. The following morning Bauer went to the hospital and told Heim money would be necessary to look after him and Bauer prepared a cheek for $3,000 to the order of Bauer’s law firm which Heim signed, the proceeds of which were deposited in a trust account maintained by the law firm. Bauer prepared the will that day and at 4:30 o’clock that afternoon went to Heim’s hospital room with two men who are associated with him in his law practice and who are reputable members of the bar of this state, to act as witnesses to the will. When the will was executed no one was present other than Heim, Bauer and the two witnesses. The testimony of Bauer and the two witnesses as to what occurred at the execution of the will follows.

The witnesses knew Heim, having seen him at Bauer’s law office several times in preceding years. Bauer started to introduce them to Heim who said he knew them through seeing them at Bauer’s office. Bauer asked Heim how he was being treated at the hospital and whether he wanted anything. Heim said he was being treated well and something was said about tobacco. BaueT said to Heim that they were there about his will and asked should he read it to Heim and Heim replied, “Yes, read it to me.” Bauer then proceeded to read the will item by item and as he finished each item Heim said it was all right, except the item concerning the real estate, as to which Bauer explained to Heim that he had made a change from what Heim had told him, so as to provide for sale of the property and division of the proceeds, rather than give the property itself to the beneficiaries, which change Heim approved. After Bauer had finished reading the will, Heim propped himself up in bed, a magazine or other rest was procured and Heim signed -the will in the presence of the two witnesses, whereupon Bauer asked Heim if he understood the paper he had signed and when Heim said “yes” Bauer asked him what it was and Heim said it was his will. Bauer asked Heim if he wanted the two men present to sign as witnesses and after Heim had said “yes,” the witnesses signed in Heim’s presence and in the presence of each other. Bauer asked Heim what he wanted done with the will and Heim told Bauer to take care of it. The proceedings occupied about half an hour and at some point therein one of the witnesses, looking out of the window, spoke to the other about the bad condition of the opposite buildings and a brewery was mentioned, and Heim said the buildings were not so old and that he recalled the locality before any buildings were there. After execution of the will had been completed, the three visitors left the hospital, Bauer taking the will with him.

To the foregoing summarized testimony should be added certain exhibits (taken from a number of exhibits of the same nature dating back several years) showing acts performed by Heim relatively near the date of his will. Thus on June 5th he noted on a milk' bill payment thereof, which payment he made by his check of that date; on June 15th he noted on an envelope from Life Publishing Co., also on an envelope from Zemzem Grotto and also on an envelope from Public Service Co. the receipt by him of those envelopes and, presumably, their contents; on July 1st he signed a check to the order of Electrotypers Hnion to pay assessment and dues, and on July 9th he drew a check to his own order, both cheek and cheek stub being in his handwriting and which check he endorsed and subsequently cashed. The hospital record of his admission July 14th contains the entry under the head of physical examination, “Emaciated old male talking incoherently at times and not appearing acutely ill” and the record for the night of July 14th is that he had a fairly comfortable night and talked incoherently “at times.” The entries “at times” would indicate the exception to a general ability to talk coherently at all times. The record for July 15th shows that Heim spent a comfortable day and slept well through that night.

Competency to execute a will is a presumption of law and the right of testamentary disposition may be exercised by one of low mental capacity. Buckman’s Case, 80 N. J. Eq. 556; In re Haness, 98 N. J. Eq. 645; In re Hops, 103 N. J. Eq. 11; affirmed, 147 Atl. Rep. 910; In re Halton, 111 N. J. Eq. 143; In re Triebe, 114 N. J. Eq. 227; In re McComb, 118 N. J. Eq. 119; In re Lucas, 124 N. J. Eq. 347; In re Herrman, 124 N. J. Eq. 542; In re Loori, 20 N. J. Mis. R. 376; affirmed, 132 N. J. Eq. 316. The time of a testator’s competency relates to the time of execution of the will. Buckman’s Case, supra; In re Strang, 109 N. J. Eq. 523; In re Delaney, 131 N. J. Eq. 454. The burden of rebutting the presumption of testator’s competency is on the contestants and must be sustained by a preponderance of proof. In re Halton, supra; In re Loori, supra. In the light of the evidence in favor of the will, let us examine the proofs adduced by contestants which they claim demonstrate the testator’s lack of mental capacity.

Irma Schultz was a witness called by the present appellant. .She resided at Trenton and was a niece of testator and the recipient of many and considerable benefactions from him before he quarreled with her over Public Service stock he had transferred to her name. She is an heir-at-law and next of kin who will share in the testator’s estate if the will is not sustained. She wrote the testator lengthy letters May 19th and May 29th, 1942, in considerable detail concerning her family affairs and money difficulties, at whicn time she must have believed him competent to comprehend what she wrote. On direct examination she testified that Heim was on unfriendly terms with his sisters Adeline and Pauline and with his brother Charles; that she turned over to him dividends .she had received on Public Service stock, some of which were received monthly, to within a short time prior to his going to the hospital; that she visited him on June 13th at which time he talked with her about dividends to fall due in two days and told her to keep them. She was not asked on her direct examination any other question which might have had any bearing on the testator’s mental condition on July 15th, but the master allowed her to say on cross-examination that she had visited the testator at the hospital July 15th from noon until 4 p. m. and during all that time she did not discuss with him any of his affairs because he was too sick and did not understand. She also said on cross-examination that she had visited Heim on another occasion between June 13th and July 15th but did not discuss any business matter with him because he was too sick to understand; that she visited him at the hospital almost every week after July 15th and .asked him questions to which he did not respond because he did not understand (which the testimony of Dr. Evans hereinafter referred to contradicts as does also the testimony of Mrs. Koggenbrodt and Bauer), that he did not recognize her and called her “Pauline.” Mrs. Koggenbrodt testified that a week or two before Heim entered the hospital he told her that the Schultzes had visited him and that they had had quite a scrap about money, and that testimony was not contradicted. Neither was Bauer’s testimony contradicted that about that same time Mrs. Schultz telephoned him and said, “I cannot stand this nonsense of the old fool, the way he is carrying on here bawling me out and calling me down. I cannot stand for it.” According to the testimony of Bauer and Mrs. Koggenbrodt, Mrs. Schultz was not at the hospital July 15th but was there July 16th and Mrs. Koggenbrodt testified that on July 16th Heim said to Mrs. Schultz, “Hell, Irma, I have no more worries. I have put everything in Mr. Bauer’s hands,” and that testimony was not contradicted. It seems impossibe to believe that if Mrs. Schultz was at Heim’s bedside four hours July 15th they discussed none of his affairs. She did not say what was said by either of them during that long period, other than that Heim asked her to get his coat and hat out of the closet, but there was no closet there. If she was at the hospital July 15th, it was but half an hour after she had left that Bauer and the witnesses to the will arrived and their testimony as to what then occurred is so totally at variance with what Mrs. Schultz would have us believe was Heim’s mental condition that day, that it can only be explained by saying that the three men deliberately perjured themselves.

Charles L. Heim is a son of Charles Heim who, as a brother of testator, will share in testator’s estate if the will is not sustained. The will devises to Charles L. Heim and his wife as joint tenants, one-third of testator’s real property, which devise amounts in value to about $2,000. By that devise the testator recognized the existence of such persons and showed his desire that they should have a portion of his estate. Charles L. Heim testified that he visited the testator June-26th and found him in bed fully dressed with overcoat on; that his bed condition was very bad because of Heim’s incontinence; that Heim did not recognize him and said nothing-(despite which he remained at Heim’s bedside an hour and a half); that he and his wife visited Heim July 12th, a very hot day, for two hours and found him in bed in the same state of dress as before and his bed condition still bad. On this second occasion the witness called to Heim and shook him but Heim paid no attention to him, said nothing and did not recognize him; that he visited Heim at the hospital July 18th and July 22d and on several subsequent occasions and Heim did not recognize him; that notwithstanding the condition he says Heim was in he sent Heim four postcards in July and August because, he said, his uncle would “raise Cain” if he did not get a postcard from him. This witness’ testimony that on his visit to Heim July 12th Heim did not recognize him and did not speak, cannot be true because he also testified that on that occasion Heim said the windows were open (when they were shut); that after Heim had oaten ice cream they had brought him he said, “This is soup” (it was a very hot day); that he said the lights were not burning (when they were) and would not work; that the witness filled Heim’s pipe and put it in his mouth (but Heim ■could not puff on it); that Heim told him the clock had stopped (when it was going) and asked the witness to fix it; that Heim said he was cold and wanted the witness to fix the furnace (which had always been the witness’ job); that Heim asked for prunes (but there were none although Heim •said there were).

Florence Heim, wife of Charles L. Heim, was with her husband on the visit to testator July 12th but did not remain throughout the whole period with her husband. She said that when she entered the testator’s bedroom she opened the windows and that the testator said nothing about them. She gave no testimony as to Heim’s condition July 12th and did not in any way corroborate her husband’s testimony as to what occurred on that visit except as to the ice cream incident. She visited testator at the hospital July 17th (not July 18th as stated by her husband) and tried to talk with him but he just mumbled. She visited him subsequently and on one ■of those visits he said he had a cigar his nephew had given him and asked her to get matches which he said were on the ishelf or at the stove (there was no shelf or stove in his hospital room); that on another visit he admired her hat whiehi she held in her hand; that two days before he died she said to him as she left his room, “God bless you” and he replied “God bless you, too.”

Dr. Evans, administrator or medical superintendent at the-hospital, testified that he made several calls of two or three-minutes each on Heim up to the time of Heim’s death and thinks, his first-call was two weeks after Heim’s arrival at. the hospital. He made no examination of the patient,, attempted no serious conversation with him, merely asked how he was and discussed pleasantries, recalled nothing Heim said to him and thought him a childish old man because he-seemed overly affected by the visits; that Heim recognized him when he came in, and seemed to appreciate his visits and thinks Heim’s condition improved for a time after he entered the hospital. Although there is nothing quite definite in the-doctor’s testimony, it would seem that if Heim showed any decided evidence of unstable mentality at any time he was in-the hospital, the doctor would have had at least some slight recollection of it. In any event, his testimony discounts the-testimony of contestants’, witnesses who say that from ther very day Heim entered the hospital he took no notice of any one and was uncommunicative.

Dr. Kaplan was an interne at the hospital from the time-of Heim’s admission and he saw Heim twenty-four hours-after his admission and may have seen him the night of his-arrival. He gave it as his opinion that Heim had no ability to comprehend anything, including the nature and extent of' his- relatives and friends or the nature of making a will, but examination of his testimony discloses that he was vague and indefinite as to the times and circumstances on which his-opinion was based, except that he said Heim was never rational and that when he first saw him he was incoherent in speech and his answers had no relation to questions asked him, yet later on in his testimony he said that the extent of his conversations with Heim was to ask Heim how he felt and-whether anything hurt or bothered him and that he got no response. His testimony is in sharp contrast with that of Dr. Evans and is in conflict with the testimony of witnesses-who saw and actually talked with Heim at the hospital and it. is also in conflict with hospital records that Heim’s mental condition was weak only “at times.” The doctor’s opinion of Heim’s mental capacity is a conclusion based on facts or circumstances he did not relate and from which, had he given them, the court could reach its own conclusion as to whether Heim had sufficient mental capacity as defined by our decisions, to make a valid will. In any event it cannot be said to-be certain from this doctor’s testimony that on July 14th when Heim gave instructions for the preparation of his will, and on July 15th when he executed that will, he did not understand the nature and quality of the act in which he was then engaged.

William Beckler is the remaining witness on behalf of the' contestants. He was a truckman who had undergone an operation at the hospital and stayed on as a porter, ne was-serving in that capacity the day Heim entered the hospital and thereafter until Heim died. His testimony is entitled to' but little weight because too general and unrelated as to time.. The only testimony he gave worthy of any consideration on the question of mental capacity is that he had no conversation with Heim other than some mornings Heim asked him to' get up coal and put it in the stove. He had been engaged by Bauer to shave Heim but Heim did not like him and told Bauer why, for which Bauer reprimanded Beckler and Beckler testified that Heim found fault with him and told him to' “get out of here.”

The foregoing is a review of all the evidence on the subject of the testator’s capacity to make a valid will. It is lengthy but I know of no shorter way of gathering together all the-facts on which the claim of the contestants that the testator was mentally incompetent, can be given full and careful consideration. The question of competency must be determined as of the date of the will and the burden of showing mental incapacity, as defined by our eases, at that time, is on the-contestants and I find that the credible evidence adduced in favor of such capacity outweighs the credible evidence adduced by contestants to show the contrary.

The contestants criticise Bauer for not calling Dr. Shapiro' and another person who had contact with Heim and who might have given testimony which would have aided in determining Heim’s mental condition just prior to and at the time he executed his will. Those persons were equally available to the contestants (one was present at the hearings before the master) and could have been called by them. Considering where the burden of proof rested, it seems that the criticism might better be directed at the contestants.

The remaining question to be determined is whether the testator was influenced by Bauer as to the terms of the will he executed. I think that because the testimony shows some relation of trust and confidence existed between Heim and Bauer and because of the facts and circumstances surrounding the execution of the will, there was cast on Bauer the burden of showing that in the execution of the will he exerted no influence on the testator to bring about a provision therein so beneficial to himself. In considering whether the burden was sustained Bauer’s testimony cannot be disregarded, unless it appears to have been successfully contradicted or discredited by other evidence (Sparks’ Case, 63 N. J. Eq. 242; In re Cooper’s Will, 75 N. J. Eq. 177; affirmed, sub nom. Harrison v. Axtell, 76 N. J. Eq. 614; Ward v. Harrison, 97 N. J. Eq. 309; Loveridge v. Brown, 98 N. J. Eq. 381), which I do not find to be the case.

Bauer has been a reputable member of the bar since 1911. He became acquainted with the testator in 1908 when be (Bauer) was a clerk in the office of a lawyer with whom Heim did business. In the early years of Bauer’s clerkship his preceptor maintained office hours two evenings a week, and for a period of years Heim called on Bauer evenings and they discussed subjects in which they had a common interest. The social calls continued after Bauer had been admitted to the bar and because they resided in the same neighborhood, they met on the street at various times. Bauer became Heim’s attorney and rendered services for him which included drawing wills for Heim and his wife and the preparation of Heim’s income tax returns for years, to and including 1942. In Heim’s diary under dates of March 3d, 1936 and March 3d, 1937, and on a sheet torn from a calendar of March 10th, 1942, Heim noted Bauer’s attention to Ms income tax. In 1938 Heim called Bauer to Ms home and spoke with Mm about the will Bauer had drawn for him in 1928 in which his sister Pauline Koggenbrodt had been named sole beneficiary, and told Bauer he had torn his signature from the will because of a disagreement he had had with his sister. He told Bauer he wanted him to draw another will but would postpone it because of difficulties he was having with Irma Schultz over stocks. On another occasion Heim spoke to Bauer about a will but again delayed because he had not yet settled his troubles with Mrs. Schultz. In March, 1940, and about six weeks before Heim went to the hospital Heim again talked with Bauer about making a will. Thus it appears that the subject of a will was always broached by Heim and never by Bauer, and that the will here under consideration was not drawn until four years after Heim had first opened the subject of a will to Bauer. The details concerning how Bauer received Heim’s instructions as to the terms of the will and as to how the will was executed, have been stated above. It appears from Bauer’s testimony, fully corroborated by Anna Boggenbrodt, that the testator’s statement of his desire to leave the bulk of his estate to Bauer was entirely voluntary, without any suggestion from Bauer; that Bauer was taken by surprise and at once sought to remind Heim of his relatives, and asked Heim if he would not like to leave his estate to them, which suggestion Heim promptly and emphatically rejected because, as Ms reply and testimony show, he had a strong antipathy for them and was determined to leave them nothing. There is not the slightest indication from any testimony in the case that Bauer had any part in creating or fostering that antipathy but rather that Bauer had sought to mollify Heim’s feelings toward his relatives. With a feeling of bitterness against his relatives and with the necessity of disposing of his estate in some way and to some one, it is not unnatural that Heim’s mind turned (or perhaps had previously turned) to Bauer who had been his friend and adviser for years. I have the thought that Bauer’s surprise at being named by Heim was not only because he was so named but because of the munificence of the proffered gift, the extent of which Bauer must have believed was much more than $14,000 shown by the bank statement at Heim’s bedside, and the other bank books of which Heim spoke, because he had prepared Heim’s income tax return for years. I have recited all the evidence there is in the case which has any bearing on the question of whether or not Bauer exercised any influence over Heim when the latter gave directions for the preparation of his will, or at or before the time the will was executed. There is no evidence that prior to the execution of the will Bauer had attempted to ingratiate himself with Heim by having close or intimate association with him, or by attempting to exclude Heim’s relatives from access to him, or by even suggesting that Heim make a will. Of course Bauer had the opportunity to influence Heim’s mind in his favor, but undue influence cannot be inferred from mere opportunity to exert it and no direct proof was offered to show that Bauer had controlled or had ever attempted to exercise control over Heim’s mind. Heim was a free agent when he was called upon to execute the will in the presence of the two witnesses. It can be said that Bauer showed poor judgment in procuring witnesses who were his associates in business, yet it was natural that Bauer should not chance to rely on the possibility of finding witnesses available at the hospital, and that he should have selected persons who weTe not strangers to Heim rather than nurses or hospital attendants with whom Heim had not the opportunity to become familiar in the less than twenty-four hours he had been in the hospital. However that may be, Heim approved each item •of the will as it was read to him and thus he affirmed his testamentary desire as to Bauer in the presence of those witnesses. When Heim told Bauer he proposed to give the residue of his state to Bauer, he did not state that his reason was because of his affection and esteem for Bauer or in recognition of Bauer’s many kindnesses and favors to him, but such were evidently among his reasons, and when that item of the will was read to Heim and he affixed his signature he adopted .as his own, the words which stated his reasons.

The contestants refer to acts on the part of Bauer which they claim should be considered as failure to disprove undue influence exercised by Bauer over Heim, many of which are trivial and concern Bauer’s acts some time after the will was executed. Others are that the morning of the day the will was executed Bauer had Heim sign a check for $3,000 and in August he had Heim sign another check for $7,500. Both checks were deposited in the trust bank account maintained by Bauer’s law Arm and an itemized record was kept on the books of the Arm of said receipts and disbursements therefrom. Bauer knew that Heim’s stay in the hospital would require money and he obtained the second check because he had been advised by the doctor that Heim might live a year or more and he thought the time might come when Heim would be too ill physically or mentally to sign cheeks. Bauer was the person in charge of Heim’s welfare and comfort and he was the executor named in the will. Hone of Heim’s relatives had offered to assume his care. Bauer was the one who would have to produce the needed money for Heim’s expenses and he knew if he spent Heim’s money recklessly he as residuary legatee, would be the one to suffer. He rendered a detailed and accurate account of the receipts and expenditures of the $10,500 to the administrator pendente lite appointed in the cause. The contestants make a point of Bauer’s delay in rendering that account but the evidence that Bauer had received the money was always and readily available and the delay was fairly explained.

Bauer did not disclose until after Heim’s death that a will had been executed. He was under no duty or obligation to make such disclosure unless questioned and no one asked him. When he presented the will for probate at the surrogate’s office, he requested the probate clerk to keep it out of the newspapers, the reason for such request not appearing. That was a foolish request but I have known it to be made frequently. The will was a public record open to any one who might be interested in Heim’s estate and immediately after the will was probated Bauer sent copies to Heim’s relatives.

Bauer’s relations with Heim were open and known to the contestants, or to most of them, before and after the date of the will. After Heim had gone to the hospital. Bauer visited him frequently and between August 11th, 1942, and Heim’s death he wrote six letters to Heim’s relatives informing them of changes in Heim’s physical and mental condition and stating that he had received a substantial sum from Heim (in one letter he mentioned $13,000) to pay for his hospital care and that he would have to use some of it to pay taxes on Heim’s real estate because Heim insisted on his so doing. After Heim’s death he wrote several more letters to those relatives wherein he said he would be glad to answer any questions concerning Heim’s affairs and that he would probate the will and send copies, which he did three days after probate. When it appeared that Heim was about to die, as well as on the day of Heim’s death, he sent telegrams to all known, relatives. '

It is my conclusion that Bauer had fully sustained, the burden on him of showing that he had exerted no influence over Heim regarding the terms of the will, and having also concluded that the testimony before the master showed that Heim possessed testamentary capacity at the date and execution of the will and that the contestants had not sustained the burden of proving otherwise, I find that the decree of. the Hudson Orphans Court setting aside probate of the will was erroneously entered and should be reversed.

By orders of the Orphans Court entered March 28th and March 31st, 1944, allowances were made to the master, to the administrator pendente lite and his counsel, to proctors for the contestants and Bauer, all to be paid by the administrator pendente lite out of the estate in his hands, the total of which-allowances is $19,500, or more than 20% of the gross estate. Presumably they were based on affidavits filed with the court purporting to show services rendered and time devoted in the, performance of those services. Appeals from the allowances were filed by Irma Schultz, Jeanette Heim and Bauer. The point of view on the question of allowances is different now. than it was when they were made by the Orphans Court. Then, since probate of the will was set aside, the allowance would be borne by the next of kin. How, as the result of the conclusions I have reached on the main appeal, Bauer will pay them, nevertheless I am required to pass on their reasonableness and in doing so I have examined the whole transcript of the record in the case including the aforesaid affidavits, and I have reached the following conclusions.

The master stated in his affidavit that he had devoted sixty full court days of five hours each to the performance of his duties. He sat four days for taking testimony and part of the fifth day to receive two sets of briefs. It would seem that fifteen working days thereafter would have been ample for his consideration of the testimony and briefs, for inspection of such exhibits as were referred to in the briefs and of such other exhibits that he deemed of importance, for examination of the cases cited to him and other cases, and for the preparation of his report, thus making a total of twenty working days fairly to be devoted to his duties. I think $2,500 is a fair allowance for his services and that the order of the Orphans Court allowing him $4,500 should be modified accordingly.

The administrator pendente lite was appointed March 23d, 1943, and he had served a few days more than a year when the order for his allowance was entered. His affidavit indicates that he devoted 200 hours to his duties. It appears that he performed more than the usual duties of an administrator such as merely receiving and holding assets of the estate and preparing an inventory and appraisement, in that among other things he prepared and filed inheritance and income tax returns and worked on federal income tax returns, sold the testator’s real estate under order of the court, sold or exchanged some estate securities and invested estate funds in bonds. Ordinarily an administrator pendente lite receives no allowance until he has filed his account and been discharged, but an 'allowance may be made properly on account of services when it appears that settlement of the estate in his hands may not be concluded speedily. I consider that the allowance of $2,500 to him was generous and in full for services he had rendered up to the entry of the order allowing it, and I think it was sufficiently large to cover the greater part of legal work for which he retained counsel without applying to the court for authority to do so, which work he could have performed himself. He is a counsellor-at-law of this state of twelve years standing and he was able and competent to attend personally to all legal matters which arose in conneetion with his duties and he had the opportunity and benefit of advice from the proctors for contestants and for Bauer. R. S. 3:11-8 is not authority for employment of counsel for a fiduciary and for the allowance of fees to such counsel. The affidavit presented by his counsel is quite general in statement and seems to-rep eat. items of service contained in the administrator’s affidavit. Bor such services therein shown as it is possible the administrator might have required legal assistance, an allowance of $500 would have been ample. The order of the Orphans Court making an allowance of $1,500 to counsel for the administrator should be modified accordingly.

As to the allowance to proctors for the contestants Howard Heim, Florence Heim, Adeline Butterfield and Charles Heim and to proctors for Bauer of $5,000 each, I would say that they were too generous. I appreciate that preparation of the case must have consumed considerable time and the records show that the contest before the master was conducted vigorously on both sides. Undoubtedly the briefs prepared by the proctors for the master were able and. exhaustive both as to the facts and the law. While the proctor appearing for the contestants named above, who filed or joined in the appeal from probate, conducted the hearings before the master on behalf of those whom he represented as well as on behalf of the other contestants, he had the assistance of the proctors who appeared for those other contestants. Considering all the foregoing and the affidavits showing services performed and time devoted to such services, I think an allowance of $4,000 each to said proctors would be liberal and the order of the Orphans Court fixing such allowances should be modified accordingly.

Proctors for contestants Irma Schultz and Jeanette Heim appeal from the allowance of $250 made to them on the ground that the allowance was inadequate. It is an allowance like in amount to the allowance made to three proctors for other contestants. The record discloses that the appealing proctors rendered more service in the conduct of the cause than did those other proctors and therefore I think they should have been allowed $750. The Orphans Court order making such allowances should be modified accordingly.


source: Caselaw Access Project

author: The Court:

license: Public Domain

text:
    Essex County Circuit Court.
    BELMONT HOTEL, INC., v. THE NEW JERSEY TITLE GUARANTY AND TRUST CO.
    Decided March 21, 1944.
    For the plaintiff, Kristeller & Zuclcer.

    For the defendant, John Nugent.

   The Court:

This suit is one brought by Belmont Hotel, Inc., the plaintiff, tenant, against The New Jersey Title Guaranty and Trust Company, the defendant landlord.

It appears, under the terms of the written lease between these parties, which is in evidence, made on or about September 26th, 1941, that under paragraphs 2, 3 and 4 of the said lease the obligations of the tenant are specifically set forth as to what the tenant has to do relative to certain repairs. There is no provision contained therein relating to alterations.

It is yery clear-.from the reading of the lease — at least it seems so to me — that paragraph 3 says in,effect that “For the correction, prevention and abatement of nuisances, violations or other grievances in or upon or cbnneeted with said premises during said term, the tenant shall at its own cost and expense properly comply with and execute all rules, orders and regulations, orders, statutes, ordinances and requirements of the iFederal, State and Municipal government and of any and all 'their departments, commissions, boards, and bureaus applicable to said premises.”' It is clear that relates only to the correction and abatement of a nuisance, violation or grievance.

Certainly the conversion from oil burning to coal burning has no relation or connection whatever to a nuisance, violation or grievance.

The federal government directed this change to be. made on account of war conditions and in order to conserve fuel oil ■for our armed forces. Naturally, this was not within the contemplation of the parties at the time the lease was executed. However, at the time the lease was executed it was ■agreed between the landlord and the tenant that the premises, for which the landlord obligated itself to pay the rent, was to be used for a specific purpose and the specific purpose was the purpose of conducting a hotel business under the name ;of Hotel Belmont, Inc.

Naturally, the hotel business could not be conducted unless ' there was heat furnished as that is required for both health and sanitary reasons. Certainly the landlord had an obligation and agreed when it rented these premises for the purpose of being used as a hotel, that it could be so used and that the conversion herein required, under the direction of the .President in his' capacity as Commander-in-Chief of our ■ armed forces, necessarily had to be followed out and obeyed. This, of course, could only be done, as I see it from the agreements of these parties, by the landlord arranging for such ■ conversion so that the property could be used as hotel property in order that the landlord might benefit thereby, not only jfrom receiving the rental from the tenant but .the landlord . also received the. full benefit at the expiration of the lease of .owning the so-called fixtures and necessary equipment when the property reverted to the possession of the landlord. It is quite true that in Holden v. O’Brien, 209 App. Div. 266; 204 N. Y. S. 340; affirmed (Court of Appeals), 240 N. Y. 560; 148 N. E. Rep. 705, that the court held the same as I have found here, the obligations and the duties of the parties as relates to their agreement for alterations to the property in question.

I cannot see that the suggested authority upon -which the defendant relies, i. e., Central Railroad v. DeCozen, 118 Atl. Rep. 625, is in any way applicable to the situation we have had presented to us in the instant case. In this case there was a limitation on the duty of the landlord as to what it was called upon to do and that related only, as I have already indicated.

Therefore, the motion on behalf of the defendant for a direction of a verdict, the court will deny. I, therefore, will find a verdict in favor of the plaintiff as against the defendant.

The next question for consideration is, what amount of damages has the plaintiff established.

Naturally, the burden of proof is upon the plaintiff to establish its case by a fair preponderance of the evidence, that is the greater weight of the evidence. That also includes the question of the amount of damages that it has sustained. The proofs are uncontradieted, as the defendant has not, in fact, offered any testimony as to what the cost of the installation of the apparatus for coal firing amounted to. Further, the testimony would indicate that the plaintiff did install a stoker system. The contract for same is in evidence and is in the amount of $1,895.

A reliable concern has previously made an inspection of these premises and made certain recommendations of what was necessary and a stoker system was agreed upon, but, in my opinion such concern, as I have said, was well qualified and able to install, recommend and advise what firing system would be necessary and proper to accomplish results when needed for the proper heating arrangement in the conduct of this hostelry.

The plaintiff, however, added thereto the services of an engineer. I am not satisfied, nor am I convinced, that the plaintiff has established the proof necessary that the services of that engineer were such that his fee should be allowed as an element of damage. The work could well have been done without the services of the engineer. The other claims are waived, such as the claim for ash cans and a claim for hoisting apparatus for the ashes.

Therefore, I find the amount of damages is $1,895. And I will direct a verdict in favor of the plaintiff and against the defendant in the sum of $1,895, without interest.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    THEODORE LIPINSKI, PETITIONER, v. CURTISS-WRIGHT CORPORATION, RESPONDENT.
    Decided May 22, 1944.
    For the petitioner, Nathan Babinowitz.

    For the respondent, John W. Taylor.

   Petitioner testified that he was employed by the respondent to work in its trimming department, on February 17th, 1942; that he continued to be so employed until July 22d, 1942; that on July 10th, 1942, at 3 :15 P. m., as he jammed a propeller into a vise he felt pain in his chest and immediate weakness ; that he sat down and could not get up for some fifteen minutes during which time he perspired; that his foreman, Don Strang, asked him what the trouble was and he told Strang that something had "ripped” in his chest and that he couldn’t move; that Strang said, "Oh! I’ve heard that before” and walked away; that he remained in a sitting position until 4:00 P. M\, his regular quitting time; that he then washed up and drove his own automobile to his home in Clifton,- a distance of approximately ten miles from the plant which was located in Caldwell, New Jersey; that his chest ,at this time felt puffed up; that that night he felt tired and had pains in both elbows and went to bed at 7:30 p. m., however, generally speaking he felt all right during the night; that he continued to work until July 22d, 1942, although he says that between July 10th and July 22d, he did a lighter 'type of work and experienced shortness of breath after walking any great distance and had pains in his elbows; that he did not go to the plant hospital nor make any request for medical attention to the respondent; that he sought the services of his own personal physician, a Dr. Budd, on July 17th; that he went to Dr. Budd because he was tired out, had pains in his elbows and back; that he saw Dr. Budd again on July 22d, at which time an electrocardiogram study was made and.was told by Dr. Budd to stay in bed for several Weeks; that he stayed in bed for three weeks during which time he. was attended by Dr. Budd; that when he returned to work the latter part of September, 1942, he was given light work for two or three months when he “got sick all over again;” that he thereafter stayed home for a month and then was given a job as an inspector; that he thereafter sought employment and now works for the Wright Aeronautical Company in Paterson as a tool crib attendant; that at the present time his back, chest and elbows are painful, he has shortness of breath, feels bloated up and has to walk up steps slowly; that he does not do any heavy lifting and takes it easy; that he loses occasional time from his present work.

■ On cross-examination the petitioner at first insisted that be was in perfectly good health prior to July 10th, 1942, however, he finally admitted that he had suffered pain over the outer aspect of the left elbow for a period of five years prior to July, 1942. He insisted that he described the alleged incident of July 10th, 1942, to Dr. Budd and specifically denied that he ever told Dr. Budd that he had pains in his chest radiating to both elbows for a period of six months prior to July, 1942. He also identified statements of claim made by him to the Metropolitan Life Insurance Company on July 28th, 1942 (R-l in evidence) and November 7th, 1942 (R-J¡. in evidence). His testimony indicated that petitioner received 71 cents an hour for a 40-hour week.

Joseph Lorenzo, testifying on behalf of the petitioner, stated that he worked with the petitioner for about a year prior to July, 1942; that in July, 1942, he worked at a job similar to that performed by the petitioner, working about six feet directly to the rear of the petitioner; that as he was working in this position on an unfixed date in July, 1942, he observed the petitioner go from his bench to a place where propeller blades were stacked and lift up a propeller blade, return to his bench and place the blade in a vise; that directly thereafter petitioner complained of pain and sat down; that the boss, Don Strang, came over and stated that there was to be no sitting down on the job; that petitioner then said that he felt poorly after he had lifted the blade following which he had suffered pain; that he had to lift blades for the petitioner thereafter; that petitioner worked on blades the remainder of the day but did no further lifting;, that when petitioner sat down he was sweating: that he could not recall the exact date of that occurrence.

On cross-examination Lorenzo testified that the occurrence which he claims to have witnessed took place about 1 :00. p. 3i.; that as far as he could see the petitioner had no particular difficulty in placing the blade in the vise; that the petitioner worked on the blade for a short period of time after placing the blade in the vise before he sat down; that petitioner after sitting down for about fifteen minutes continued to work for the remainder of the day.

Dr. Samuel Kleiner, an internist, testified that he exam-■■ ined petitioner September 24th, 1943; that petitioner did • not appear to be acutely ill, his blood pressure was 140/90, pulse was strong and regular, the apex beat was in the fifth-inter costal space and in the mid cavieular line, the heart sounds were muffled, and there were a few extra beats, there' was some enlargement of the heart to the left, lungs -were-negative, liver and spleen were negative, and there was no' edema of the lower extremeties, urine analysis was negative, • and Dr. Kleiner’s diagnosis was myocardial damage, coronary infarction with the usual after effects. Dr. Kleiner estimated the petitioner’s disability at 50 to 60% of the total.

On cross-examination Dr. Kleiner, when asked to assume that petitioner had informed Dr. Budd on July 17th, 1942, that he had suffered pains in his chest radiating down both arms for a period of six months prior to July, 1942, which pain caused him to stop what he was doing and came on on frequent intervals particularly following exertion or after eating meals, stated that the symptoms were consistent with a condition of coronary infarction, throughout that period of time.

Dr. Ernest Boas, of New York, a heart specialist testifying on behalf of the petitioner, stated that he examined the petitioner November 16th, 1943; that a fluoroscopic examination showed a slight enlargement of the left ventricle and left auricle, the first heart sound was a bit dull, there were no murmurs, blood pressure was 130/90, electrocardiograms showed- slurring of O E S, there-was a low T wave on all leads, there were abnormal K T segments on leads 2, 3, and 4, there was a deep Q wave in lead 4. Dr. Boas was of the opinion that the petitioner had suffered a cardiac infarction and was now suffering from the after effects-of same, namely scarred and weakened heart muscle. In answer to a hypothetical question, he stated that it was his opinion" that the petitioner’s condition was causally related to the alleged episode of July 10th while at work. He further stated that the petitioner undoubtedly had an underlying arteriosclerotic ■condition, however, he felt that the alleged incident of July 10th caused the infarction and resulted in damage of the ■coronary artery wall. He allowed the petitioner a present, -disability of 50% of the total.

On cross-examination he admitted that if the petitioner suffered from chest pain which radiated down the both arms for a period of six months or more prior to July, 1942, that the petitioner undoubtedly had a cardiac condition which to some extent was disabling, therefore leading to the conclusion that the petitioner’s entire disability at this time is not ■chargeable to the alleged accidental occurrence of July 10th. He further admitted that the symptoms and complaints made by the petitioner prior to July, 1942, could be due to the after effects of an infarction and that the only way he could relate the infarction which he noted on examination to the petitioner’s employment is by reason of the petitioner’s history of an accidental occurrence at that time while at work. He admitted that he had not had an opportunity to examine the electrocardiogram studies made by Dr. Budd, the attending physician, within ten days after the alleged occurrence, and stated that such an examination would have aided him in determining when the infarction occurred. It should be noted that Dr. Boas expressed the thought that electrocardiograms will at best only show whether an infarction is of recent origin, that is within a month’s time or older.

This concluded the petitioner’s case.

On behalf of the respondent, Don Strang, the petitioner’s foreman, testified that petitioner worked under him between March 8th, 1942, and August 29th, 1942, and that the payroll records indicated that petitioner was absent from work June 6th, June 9th, June 10th, June 11th, June 12th and June 13th, 1942, and last worked on August 29th, 1942. He stated that he had no recollection and could not recall petitioner ever complaining to him of any inability to do his regular work or any failure on the part of the petitioner to do his regular work. He also stated that had the petitioner complained to him he would have sent petitioner to the plant’s infirmary and that the fact that he had not done so established in his mind exclusively the fact that petitioner had not complained or evidenced any disability. It was not until several months later that he was first informed that the petitioner was out of work due to a heart condition.

Dr. Bueben Budd testified that the petitioner first came to him on July 17th, 1942, at which time the petitioner stated that he had been to other physicians, the names of whom Dr. Budd could not recall, and that he had been referred to Dr. Budd for diagnosis; that petitioner at that time stated that he suffered from pain in his chest radiating down both arms for a period of six months prior to July, 1942; that the pain lasted anywhere from a few seconds to about a minute and was located in the center of the chest radiatmg down both arms; that petitioner stated that he felt weak for about a minute following these attacks and had to stop whatever he was doing at the times of the attacks; that these pains also came on when petitioner attempted to do things in a hurry or when he was angry or when he was excited; that these attacks were noted after breakfast and at times petitioner perspired with the attacks; that these attacks occurred on an average of three times a day for the six months period prior to July, 1942; that petitioner gave him no history of a sudden attack while doing any particular thing at any particular time and that he gave no history of suffering a sudden attack while at work or at any other time, although he was asked if such an attack occurred; that the petitioner did not appear ill; that his blood pressure was 130/80; that he had enlarged tonsils and that the heart examination per se was negative; the electrocardiograms taken July 20th, 1942, before exercise, indicated a previous infarction of the anterior surface of the left ventricle and electrocardiograms taken after exercise, showed more marked depressions of the E T segments and changes in the T waves indicative of coronary insufficiency. By previous infarction Dr. Budd meant an infarction more than ten days old. He stated that a Wasserman test and a urine analysis were both negative. His diagnosis on physical examination and history was — possible coronary artery disease and he advised rest. He treated the petitioner and last saw petitioner on October 19th, 1942. Dr. Budd examined the electrocardiogram studies made by Dr. Boas on November 16th, 1943, and stated that these confirmed his opinion that the .infarction indicated by the electrocardiograms taken July 20th, 1942, was an infarction of considerable duration .and not a recent one. Dr. Budd stated that it was his opinion that the complaints made by petitioner and the symptoms manifested by him during the six months period prior to July, 1942, were consistent with a previous infarction and it was his opinion that the petitioner did not suffer a coronary infarction at a time immediately preceding his examination on July 17th, 1942.

Dr. George Oleott testified that he examined petitioner April 13th, 1943, and he stated that based on his examination and the testimony of Dr. Budd, as well as the electrocardiogram studies made by both Dr. Budd and Dr. Boas, it was his opinion that petitioner had suffered a coronary occlusion which must have antedated July, 1942, by a matter of several months. He stated further that the electrocardiograms taken July 20th, 1942, evidenced a healing process and that the nature of the healing process was such that the infarction must have occurred a matter of several months prior in order for evidence of the healing process to manifest itself on the electrocardiogram studies made.

On behalf of the respondent, the applications executed by petitioner for benefits under a group policy issued by the Metropolitan Life Insurance Company, were offered in evidence.

The petitioner was called as a rebuttal witness and when asked to contradict the testimony of Don Strang, he stated that it was his recollection that he told Don Strang that he was ill and couldn’t continue to work.

I have listened to lengthy summation on the part of counsel and I have carefully considered the extensive notes which I made throughout the course of this trial.

It might be stated at the outset that the evidence in this case is such as cannot be reconciled. The contention of the petitioner is that he met with an accident on July 10th, 1942, when he was jamming or attempting to jam a propeller blade into a vise, immediately following which he was seized with a pain in his left chest which caused him to sit down and rest for fifteen minutes. That is seriously controverted by the respondent.

An attempt was made by petitioner to produce corroboration of his testimony by producing a witness, Lorenzo. Mr. Lorenzo’s testimony did not particularly impress me.

It seems to me that the crux of the whole case rests entirely with what the petitioner told his attending physician, his personal physician, Dr. Budd. It was pointed out in Consolidated Traction Co. v. Lambertson (Court of Errors and Appeals), 60 N. J. L. 452, that the declarations of a patient, as to his symptoms, made to his physician for the purpose of treatment, are to be given great weight for the reason that the patient expects his physician to be guided by them in administering remedies, thus the patient has an incentive, beyond the ordinary obligation, to tell the truth.

It is interesting to note that the petitioner failed to call Dr. Budd, despite the fact that he selected Dr. Budd as his own personal physician and went to him when apparently he could not obtain relief or satisfaction from the other doctors, he had seen prior to going to Dr. Budd. Dr. Budd, when he did appear, contradicted the petitioner’s testimony to a substantial extent. As appears from the testimony, the only history given Dr. Budd, by the petitioner, was that for the six months last prior to July, 1942, he had been suffering with chest pains, radiating down both arms, which lasted from a matter of a few seconds to a minute or so and which' resulted in the petitioner feeling weak following the attacks, and caused him to stop work at the times of the attacks and to rest. These attacks, as described by the petitioner, came on whenever he did anything in a hurry, when he was excited or angry and frequently followed eating. He also stated that the attacks came on as often as three times a day and that in the course of these attacks he felt as though he was being crushed. In the history obtained by Dr. Budd there was a total absence of any episode occurring, on July 10th, 1942, a week prior to the date when Dr. Budd’s services were sought and' as a matter of fact, there was a total absence of a history involving the present alleged episode.

. According to the petitioner, he worked after the alleged occurrence of July 10th, 1942, for a full week before going to a physician or before seeking medical attention, which is most unusual in a case of coronary thrombosis. Coronary thrombosis, when related to 'trauma, is generally a dramatic condition. It is not one where a person .sits down for a few ■minutes’ rest and then drives an automobile ten miles. ■ Generally, it is a situation where the person suffering the attack experiences complete collapse. The mere sitting down for- a few minutes’ rest, together with a complaint of feeling pufEed ,up in the chest with a 'pain in that area, is far from being a state of collapse. Collapse, in its accepted sense, means a total paralysis, with the person being on his back and unable to move without the aid of someone.

There are in evidence two statements of claim made by the petitioner to the Metropolitan Life Insurance Company. B-l, dated July 28th, 1942, clearly indicates that, as of the aforesaid date, petitioner made claim for benefits, under the policy with that company, predicated on a claim of illness. This, as a matter of fact, is true with respect to both statements of claim. In answer to question Ho. 4, on each of these forms, which reads as follows: “What is the cause of your disability?” the words “coronary artery disease” were written down. That is exactly what Dr. Budd, the treating physician, diagnosed the petitioner’s condition to be. Even more interesting is the answer to question Ho. 7, on the forms, which reads as follows: “Is this disability the result of injury or occupational disease arising out of and in the course of employment for wage or profit?” The answer given was “Ho.”

These exhibits are further interesting, for in the one dated July 28th, 1942, it is stated that he worked until July 21st, 1942, and in the one dated Hovember 7th, 1942, it is stated that petitioner was first disabled or totally disabled by reason of his alleged condition, October 28th, 1942.

There has been considerable medical testimony in this case and as in most cases of this kind, the testimony is considerably in dispute from the opinions of the doctors, produced on behalf of both parties, is it apparent that the correctness of the expert testimony is entirely dependent on the true history of the case.

, Here we have proof through Dr. Budd, the petitioner’s own personal and private physician, who was subpoenaed on behalf of respondent when petitioner failed to call him, that petitioner complained to him on July 17th, 1942, of having had attacks of pain in his chest, radiating down both arms, accompanied by perspiration and weakness following exertion or excitement or eating, and a history which completely and convincingly negatives the happening of any sudden and eventful occurrence while at work. Hot only this, but the electrocardiogram studies, made by Dr. Budd July 20th, 1942, also negative the probability that the petitioner’s infarction was suffered July 10th, 1942, for as described by Dr. Budd, his electrocardiogram studies show an infarction of more than ten days duration. If that be the fact, the infarction must have occurred prior to July 10th, because Dr. Budd saw petitioner on July 20th. That the infarction of an old one, occurring prior to July 10th, is borne out by the fact that they show evidence of a healing process. Such evidence would not appear in ten days’ time, as stated by Dr. Olcutt.

Hot only did the petitioner not suffer a state of collapse on July 10th, not only did he wait until the regular quitting time and drive his own automobile a distance of ten miles, but at no time did he ever make an effort on the day of the alleged occurrence, to go to the plant hospital, and at no time until July 17th, a week later, did he seek the services of his physician. It, also, appears that during the seven-day period following the occurrence he reported each day for work and worked the number of regular hours in a working day. It might also be stated in passing that there is proof in this case that petitioner was absent from work June 8th, 9th, 10th, 11th, 12th and 13th — in other words, absent for about one week in the month prior to the alleged incident without any reasonable explanation for that absence. In all probability, this absence was also due to the recurrent episodes experienced by him during the six months period prior to July, 1942, that is, his absence was in all probability the result of the pain experienced by him in his chest and radiating down both arms.

The two physicians that petitioner has relied on, Dr. Boas and Dr. Kleiner, are not treating physicians and have merely expressed opinions on a hypothetical question embodying the facts brought out in the petitioner’s case. They were not present at a time subsequent to Dr. Rueben Budd’s testimony and therefore were not called to rebut Dr. Budd’s testimony.

In Schlegel v. H. Baron & Co., 130 N. J. L. 611; 34 Atl. Rep. (2d) 132, Mr. Justice Heher, speaking for the Supreme Court said coronary thrombosis or occlusion “* * * is á condition that ordinarily ensues from coronary sclerosis or other morbid state. In all events, the presumption is that it was due solely to disease; and the onus is on claimant to establish that the asserted accident was at least a contributory cause without which the occlusion would not have occurred.”

It is also well settled that the burden of proof is upon the petitioner and that it is not enough to prove that injury or death “could have been” a result of an accident. Likewise, it is not enough to prove that an injury or death “may be” a result of an accident. Calicchio v. Jersey City Stockyards Co. (Supreme Court), 125 N. J. L. 112; 14 Atl. Rep. (2d) 465.

As pointed out by Mr. Justice Swayze, in Reimers v. Proctor Publishing Co., 85 N. J. L. 441; 89 Atl. Rep. 931, the burden of proof is upon the petitioner. Mr. Justice Swayze said that where the attending physician refused to relate the deceased employee’s death to an accident there was no basis for an inference to that effect by the court.

In Markiewicz v. International Milk Co., 19 N. J. Mis. R. 57; 17 Atl. Rep. (2d) 158, 159, it was stated that a treating physician, who was acquainted with the patient’s condition, “is, in a better position to express an opinion as to the cause and effect than a mere medical expert * * See, also, Krapowitch v. Public Service Railway Co., 3 N. J. Mis. R. 932, and Kalesvick v. United States Metal Refining Co., 7 Id. 771.

Having in mind that Dr. Budd was the only attending physician produced and that the history given him was unquestionably a correct one inasmuch as it was to the petitioner’s benefit to give Dr. Budd such a history in order that Dr. Budd could properly diagnose his condition and treat him for it. I feel that he is certainly the physician best able to express an opinion as to the cause of petitioner’s condition and that his testimony outweighs the testimony of Dr. Boas and Dr. Kleiner, who were merely called as experts to testify and answer a hypothetical question.

I have, in the course of many years, heard several cases involving alleged heart conditions and never have I heard of a case where a man worked for a week following a heart attack suffered while at work.

It is my .opinion, after carefully considering the. evidence that the alleged occurrence, of July 10th, 1942, described by •the petitioner, is merely an after thought in the petitioner’s mind. He had to fix a date for the purpose of his claim and it seems to me that this was' done long after ne consulted Dr. "Budd and long after he made claims against a policy of insurance issued by the Metropolitan Life Insurance Company. ’There .is nothing in either of the claim sheets that petitioner filed with the Metropolitan Life Insurance Company which ■makes mention of an incident occurring July 10th, 1942, in fact, these statements negative the very thought of an accidental occurrence. I am convinced that petitioner’s condition is a chronic one and was of at least six months duration prior to July, 1942, and that petitioner did not suffer any injury ■by reason of an accident arising out of and in the course of 'his employment by respondent.

It is therefore this 22d day of May, 1944, ordered that the •.petition herein filed be and hereby is dismissed.

John" J. Stahl,

Deputy Commissioner.


author: Kinkead, C. C. J.

text:
    NEILS JACOBSEN, RELATOR, v. EUGENE GARDELLA, DEFENDANT.
    Decided June 20, 1944.
    For the relator, Ward Kremer.

    For the defendant, John M. Pillsbury and Haydn Proctor.

   Kinkead, C. C. J.

The relator, proceeding by quo warranto under R. S. 2:84-7, challenges the right of the defendant to hold the office of borough councilman of the Borough of Sea Bright, New Jersey, and seeks to have him ousted from the same on the ground that -defendant was a non-resident of Sea Bright at the time of his election to the post in 1941, or that the defendant, since assuming the office, has ceased to be a resident of said borough.

At the primary election held in Sea Bright in September, 1941, the defendant was nominated as the Republican candidate for the office of councilman in Sea Bright, and the relator was nominated by the Democratic party for that office. At the general election which was held on November 4th, 1941, the defendant received a total of 288 votes as against 281 votes for the relator.

The two statutes on which the relator bases his right to a judgment of ouster are R. S. 40:11-1 and R. S. 40:46-14; N. J. S. A. 40:11-1 and N. J. S. A. 40:46-14:

R. S. 40:11-1 provides that: “* * * everj person holding an office, the authority and duties of which relate to a * * * municipality, shall reside within the municipality.”

R. S. 40:46-14 provides that: “Whenever an officer of a municipality shall cease to be a bona fide resident therein, * * * a vacancy in his office shall immediately exist, and he shall not exercise any of the duties of the office theretofore held by him. * * *”

The facts in the case are undisputed. Prior to the year 1937, the defendant lived for several years in Rumson. The defendant became married to his present wife on November 7th, 1937, and after their marriage, they and a daughter of the defendant by a former marriage lived in an apartment on Center Street in Sea Bright, residing there until April, 1938, when the family moved into an apartment on Ocean Avenue and New Street, Sea Bright. In the fall of 1938, around Thanksgiving Day, the Gardella family moved from Sea Bright to Rumson. They went to live in a residence there on Hartshorne Lane which had been owned by the defendant for several years previously.

The Rumson house is a pretentious home, having cost approximately $18,000. It has nine rooms and a two-ear garage, and a frontage- of- approximately 200 feet. In addition to the furnishings already in the home, the defendant bought for the same two bedroom sets and rugs, chairs, lamps, chinaware and other household articles.

The Gardella family lived at Rumson through the winter of 1938-1939, and in the spring of 1939, the defendant rented his Rumson home to a summer resident. At that time, he furnished and remodeled an apartment at Ocean Avenue and Church Street, Sea Bright, and moved into it, staying there until approximately October 1st, 1939, when he returned to his Rumson home with his family. He continued to live at the Rumson home throughout the remainder of 1939, the entire year of 1940, the entire year of 1941, and up until May 1st, 1942. So that, from October, 1939, to May, 1942, the Gardella family resided continuously at Rumson for a period of two years and seven months. The defendant, himself, during the summer of 1941 slept several nights in the Sea Bright apartment at a time when his wife and child were away in Maine, but at no time during said period of two years and seven months, did the Gardella family as a family have any residence in the Sea Bright apartment.

The defendant and his family occupied the Sea Bright apartment during the summer of 1942 for a period of about four months, after which they returned to Rumson. Since October 1st, 1942, down to the time of the trial of this case in the latter part of last April, neither the defendant nor his family have resided in Sea Bright, but during said period of time, have continuously resided at defendant’s Rumson home. In other words, during the sixty-five months which elapsed from November, 1938, to April, 1944, the defendant and his family resided eight months in Sea Bright and fifty-seven months in Rumson.

In addition to the statutory requirement in R. S. 40:11-1; N. J. S. A. 40:11-1, that an office holder of a municipality must reside within the municipality, R. S. 19:23-15; N. J. S. A. 19 :23-15, provides that a candidate for public office must certify that he is a resident of and a legal voter in the jurisdiction of the office for which the nomination is to be made. The form of acceptance to be signed by the candidate is in part as follows:

. "I am, a resident of and a legal voter in the jurisdiction of the office for which the nomination is to he made.” (All italics supplied.)

This form of acceptance is found in the pamphlet issued by the Secretary of State entitled “Title 19 Elections” (1943) at page 209.

From the foregoing, it can be ascertained that it is requisite to determine whether or not the defendant can be considered to be a legal voter of Sea Bright. Was he a legal. Sea Bright voter on November 4th, 1941? Can he now be regarded as a legal voter in that borough when neither he nor his family have lived in the same since October 1st, 1942?

R. S. 19 :4-1; N. J. S. A. 19 :4-1 provides that a voter shall be entitled to 'vote in the polling place assigned to the election district in which he actually resides and not elsewhere. (Italics supplied.)

The words “actually resides” in the statute mean that the voter is only entitled to vote from an address where he physically lodges and dwells. A voter loses his right to vote in a municipality when he abandons physical residence in that municipality, despite the fact that he continues to maintain an apartment or other habitable place of abode in the same. In re McCarthy, 18 N. J. Mis. R. 5; 10 Atl. Rep. (2d) 142.

Furthermore, a voter cannot actually reside in one place, but claim the right to vote in another, on the ground that he constitutes the latter place as his voting residence. A mere declaration by a voter that an address is his voting residence, unaccompanied by any act of dwelling or lodging there on his part, is not a compliance by him with the requirements of the statute. To vote from an address, a voter, if his right to vote is challenged, must be prepared to prove that his voting address is his hona fide place of abode, and that he actually resides, lodges and dwells in the same.

Circuit Court Judge Brown in In re McCarthy, supra, construed R. S. 19:4-1; N. J. S. A. 19 :4-1, and with great clarity distinguished an actual residence from an alleged voting residence. In his comprehensive opinion which has become the settled law of this state, Judge Brown, 18 N. J. Mis. R. (at p. 14) 10 Atl. Rep. (2d) (at p. 146), held:

“It is not sufficient to comply with, the statute on this qualification to merely designate an address as a voting residence, the law requires that the residence of the voter must be real, actual and positive. To be a Voting residence’ there must be not only the intention of having the address for the purposes of voting but that intention must be accompanied by acts of living, dwelling, lodging or residing sufficient to reasonably establish that it is the real and actual residence of the voter. If the term Voting residence’ fulfills those qualifications then it may be said to be a voting residence. If by voting residence is meant that a voter simply declares that a certain residence is Ms voting residence and there appears no outward act of living, dwelling, lodging or making the place Ms actual residence then such Voting residence’ does not fulfill the requirements of the law and a person voting in an election district where such Voting residence’ is situate cannot legally east a vote in that district. The voter must not only have the intent of designating a place as his or her residence but such expression of intention must be accompanied by acts in furtherance of that intention and those acts should he actual. The best and most trustworthy evidence of a voter’s residence, as a general rule, are his acts rather than his -declarations concerning his residence. It is difficult to set a hard and fast rule as to what constitutes actual residence and each case that arises may require individual consideration, but this much is certain that the voter must not only exercise an intention of having a place as his residence but that intention must be accompanied and fortified by actual and real acts of residing at the intended residence. A man may have more than one residence; he may live in one place during the summer and another in the winter but as far as voting qualifications required by the State of New Jersey are concerned he •can vote only from the place where he actually resides in the State of New Jersey and not elsewhere.”

One who is barred from voting in a municipality by reason ■of lack of residence therein, is disqualified with equal force from holding public office in that municipality. A municipality cannot lawfully elect to a public office a candidaté who is not eligible to vote in that municipality, by virtue of non-residence. The election of such a candidate would be in' direct violation of R. S. 40:11-1; N. J. S. A. 40:11-1.

Furthermore, if at any time after his election to office, an officeholder of a municipality ceases to have that quality of residence therein, which would entitle him to be considered a legal voter of said municipality, then said officeholder is disqualified from continuing to hold office therein, and a vacancy in his office immediately exists as provided by R. S. 40:46-14; N. J. S. A. 40:46-14.

The defendant and his wife are both people of a splendid standard of citizenship. Neither of them swerved nor deviated from the truth in an effort to win the case, but each frankly admitted their lack of residence in Sea Bright for the periods which have been specified.

The defendant is connected with the largest business enterprise in Sea Bright. G-ardella’s Market is widely known in the northeastern section of Monmouth County and does a gross business of approximately $200,000 per year. In addition, the defendant owns three pieces of property in Sea Bright and has a total investment interest in that borough of between $60,000 and $70,000.

The fact that the citizens of Sea Bright desire to have an officeholder of the defendant’s integrity, ability and substance, is indicated by his re-nomination for councilman at the Republican party primary held in May, 1944.

However, despite his many qualifications, the defendant is-barred from holding public office in Sea Bright by his non-residence there. It has been frankly conceded by his counsel, that the defendant is disqualified as a Sea Bright officeholder,, if he is disqualified' from voting there. He is disqualified as a Sea Bright voter, because the mere maintenance by him of an apartment or other habitable place of abode there is an insufficient compliance with the requirements of R. S. 19:4-1; N. J. S. A. 19:4-1.

It is the finding of the court that the defendant was not a legal resident of Sea Bright at the time of his election as a, borough councilman on November 4th, 1941. Furthermore,, if he had been a legal resident there in November, 1941, he-would have ceased to have that status from October 1st, 1943,. from which date down to the present he has lived continuously and exclusively at his Kumson home.

Therefore the court renders a judgment of ouster against the defendant, and in favor of the relator, and in accordance with R. S. 2:84-15; N. J. S. A. 2 :84-15, counsel for the relator may submit an appropriate order for the court’s signature.


author: Pachella, Surrogate.

text:
    Bergen County Surrogate's Court.
    IN RE ESTATE OF JOSEPH JORDAN VEALIE, DECEASED.
    Decided July 10, 1944.
    For the petitioner, Weinberger & Weinberger (by Joseph. J. Weinberger).

    For the respondent, Walter P. Back.

   Pachella, Surrogate.

Joseph Jordan Vealie, late resident of the Township of Teaneck, Bergen County, departed this life intestate at sea on the 19th day of February, 1942.

On June 13th, 1942, Helen Mae Vealie of Bergenfield, who-was no relative of the intestate, applied to the surrogate of Bergen County for letters of administration as a creditor of' the deceased, alleging that the value of the estate did not-exceed $100, setting forth that he was indebted to her for care, maintenance and education in the amount of $4,200 and that there were no known next of kin. She made an affidavit setting forth that the decedent during his lifetime had stated to her, from time to time, that he had no next of kin. On the strength of her verified petition and affidavit, the late-Surrogate Hopper, on June 24th, 1942, signed an order-granting administration of said estate to Mrs. Vealie.

On May 31st, 1944, Joseph Giordano, father of the intestate, applied to the present surrogate for a rule to show cause-why the letters of administration granted to Mrs. Vealie, should not be revoked. In his petition Mr. Giordano set forth that in addition to himself, the intestate was survived by a. brother and two sisters and that no notice of the application for letters of administration had been served upon him or on any of his children. He alleged fraud on the part of Mrs. Vealie in procuring the letters of administration and stated that she had collected $5,000 of life insurance which was payable to the estate of the intestate and to which petitioner and his children are justly entitled as next of kin. A rule to-show cause was thereupon granted by the surrogate and testimony was taken by him on the return day of the rule.

The testimony shows that the intestate, whose original name was Joseph Giordano, was born in New York City on April 10th, 1918. His mother died when he was seven months old. His father was remarried in 1922 and the second wife died in 1933. About this time the intestate began to attend a. Sunday school in New York and was befriended by Mrs. Vealie, who was a teacher there. She took an interest in the boy, befriended him and encouraged him to call at the Vealie home which the boy did frequently during the next five years. In 1938 the father was remarried again. The father and his> wife established a new residence and Joseph resided for a short time with his older brother and two sisters. Shortly thereafter Joseph, who was then twenty, made his permanent home with the Vealies who later moved to Bergen County. There is no evidence that this was done with the father’s knowledge or consent. At the hearing the father denied that the son had left the home of his brother and sisters, but insisted that the boy continued to live with them, except when he was away at sea. I am convinced from the testimony that the boy did make his permanent home with the Vealies.

Although the boy was never legally adopted by Mr. and Mrs. Vealie, he called her “mother” and subsequently legally changed his name to Joseph Jordan Vealie. In his petition for leave to change his name shortly 'before his death, the intestate alleged that “a few years previously, his father had abandoned his mother and has never been heard from since.” He also alleged that “James Walter Vealie and his wife, Helen Mae Vealie, took petitioner into their home and raised him as if he were their own son.” The petition also contains a statement that he had no creditors and had never defaulted in the payment of any obligations. Mrs. Vealie, however, testified that- she had a verbal agreement with the intestate that she and Mr. Vealie would be reimbursed for whatever they spent on intestate’s behalf, when he was able to do so.

At the time of intestate’s death he had been employed as an oiler on the ship Lalce Osweya. It was his custom to procure insurance for each trip and he designated Mrs. Vealie as beneficiary in all of these policies, except the last one, in the amount of $5,000, which is payable to his estate. The ship sailed on February 17th, 1942, on short notice, with a cargo of explosives from New York to Iceland, via Halifax, and was lost through enemy action. In her application for administration, Mrs. Vealie stated that as near as she could ascertain, the value of the personal property of which the intestate died possessed, did not exceed the sum of $100. Although, she stated that he was indebted to her for care, maintenance and education in the amount of $4,200, she did not: set forth the insurance policy as an asset, and it has since been paid to her as administratrix.

The respondent has gone to great length to show the affection that existed between the intestate and the Yealies. The letters from him to Mrs. Yealie show that the boy had deep affection for both Mr. and Mrs. Yealie and was deeply grateful to them for all they had done for him. I am convinced that the Yealies were equally fond of the boy. The rule, however, cannot be determined by ascertaining whether the parent or the Yealies had greater affection for the boy. Our statutes and the rules of the Orphans Court must govern.

At the outset of the hearing on the return of the rule, the proctor for the respondent moved to dismiss the rule to show cause on the ground that the petition upon which the rule was granted was sworn to before the proctor for the petitioner, contrary to rule 62 of the rules of the Orphans Courts, which provides that:

“No proctor or counselor shall take any affidavit for use in any proceedings before the Orphans Court or surrogate in which he or any firm of which he is a member appears as proctor or counsel of record.”

I am of the opinion that this is an irregularity which can be waived by the court. Rule 78 of the Orphans Court provides that the rules “may be relaxed or dispensed with by the court in any case where it shall be manifest to the court that strict adherence to them will work surprise or injustice.”

Our courts have held that although it is irregular for a party’s solicitor of record or counsel to take his affidavit to be used in a judicial proceeding, this rule is one of judicial policy and may be waived by the court. In re Ungaro’s Will, 88 N. J. Eq. 25; 102 Atl. Rep. 244; State v. Bergen, 24 N. J. L. 548; Becker v. Kelsey et al., 9 N. J. Mis. R 1265; 157 Atl Rep. 177.

The question now arises as to whether the surrogate may re-open the administration proceedings and if the facts warrant, vacate the order granting administration of the decedent’s estate to Mrs. Yealie. I am of the opinion that the power of the surrogate to re-open the proceedings and to revoke letters of administration for just cause is now beyond dispute.

“The surrogates of the several counties shall have power and authority to open, vacate, modify or set aside or to enter as of a former time a decree or order made in their court, or to grant a new trial or a new hearing for fraud, newly discovered evidence, clerical error or other sufficient cause, but only in like case and in the same manner as a court of record and of general jurisdiction exercises the same powers.” R. S. 2:31-4; N. J. S. A. 2:31-4. In re Kellner’s Estate, 121 N. J. Eq. 243; 189 Atl. Rep. 91; In re Collin’s Estate, 11 N. J. Mis. R. 233; 165 Atl. Rep. 285; In re Crociani’s Estate, 11 N. J. Mis. R. 838; 166 Atl. Rep. 636.

“The statute (R. S. 2:31-4; N. J. S. A. 3:31-4) does not limit the time within which the surrogate may vacate its decree for the causes mentioned.” Seaboard Trust Co. v. Topken, 130 N. J. Eq. 46; 30 Atl. Rep. (2d) 709.

We now come to the question of notice to the next of kin. of application for letters of administration.

Mrs. Yealie in her petition to the surrogate for letters of-administration alleged that she was not related by blood or marriage to the intestate; that there were no known next of kin, and that the decedent in his lifetime had stated to her from time to time that “he had no father, mother, children, grandchildren, or other descendants, no brother, sister, or other living heirs or next of kin.” At the hearing upon the return of the rule she testified that she attended the graduation exercises of the trade school from which the boy was graduated and in answer to the question, “And what did he [the intestate] say to.you?” she replied: “He thanked me for coming, and said H am so glad you came. No one else is here/ and he was very hurt.” She also testified that subsequently the intestate and herself on two occasions went to see his grandmother, but she died since. Mrs. Yealie also testified that she met some of his friends, but there is no evidence that she made inquiry of them for intestate’s next ■of kin.

R. S. 3:7-6; N. J. S. A. 3:7-6, provides that: “If any person dies intestate, administration of the personal estate of •such intestate shall be granted to the surviving spouse of such intestate, 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, and if none of them will accept the same, then to such other proper person as will accept the same.

“If such intestate leaves no relations justly entitled to the administration of his personal estate, or if his next of kin shall not claim the administration within forty days after the death of such intestate, the ordinary or surrogate may grant letters of administration to any fit person applying therefor.”

Eule 5 of the Orphans Courts provides that in all cases where application for letters of administration is made subsequent to the space of forty days after the death of an intestate, the applicant shall give at least ten days’ notice to the persons entitled to administration who are residents of the State of New Jersey, and not less than ten nor more than sixty days’ notice to those who reside without the State of NTew Jersey, or to those of them whose residences or addresses he can ascertain, of his intention to make such application.

Eule 22 of the Orphans Courts provides for the nature of inquiry for absent next of kin or other persons entitled to notice of application for letters of administration.

As our Court of Errors and Appeals stated in In re Sinovcic’s Estate, 80 N. J. Eq. 260; 86 Atl. Rep. 917: “These rules are as binding as the statute, must be complied with, and a valid grant of administration cannot be made without such compliance.”

No inquiry for next of kin was made by Mrs. Yealie, or her proctor, presumably because it was believed that the intestate had no next of kin. I do not consider it necessary for me to determine whether or not the administratrix was sincere in her belief. The fact remains that the father, brother and two sisters survived the intestate, that they were equally entitled to administration, and that they received no notice of her application for letters of administration. In the ease sub judice notice to the next of kin was of vital importance because the application for letters of administration was made by a creditor. This surrogate does not favor the appointment of a creditor as administrator for it places the creditor in the position of passing on the validity of his own claim. A better practice under such circumstances, would be to appoint a disinterested person. In the instant case tbe administrator, as a creditor of the estate, has claimed a debt owing to her by the decedent, the payment of which would require almost the entire assets of the estate. Such a claim should be passed upon by some one other than the claimant.

The right of administration grows out of the right to distribution, and those therefore, who are entitled to the intestate’s clear estate, have an exclusive primary right to administration. Cramer v. Sharp, 49 N. J. Eq. 558; 24 Atl. Rep. 962.

Administration of an estate should be committed to those who are the ultimate or residuary beneficiaries, that is, to those to whom the residue of the estate will go, when the administration is completed. Donahay v. Hall, 45 N. J. Eq. 720; 18 Atl. Rep. 163; In re Tenneson’s Estate, 18 N. J. Mis. R. 245; 12 Atl. Rep. (2d) 363.

Letters of administration cannot be granted to a stranger, unless the next of kin have consented to the grant or unless they have been given notice or have been cited. Rinehart v. Rinehart, 27 N. J. Eq. 475; Gans v. Dabergott, 40 Id. 184; Sayre v. Sayre, 48 Id. 267; 22 Atl. Rep. 198..

“Where letters of administration have been issued by this [Prerogative] court without notice to, and in disregard of' the rights of, a person having an interest and entitled to be heard therein, such action having been-the result of factual misrepresentation to this court by the ex parte applicant or one identified in interest with him, whether such misrepresentation was the result of fraud or of mistake, this court will re-open the proceeding, on the application of the person whose rights were so disregarded; and where, upon such re-opening it appears that the latter has a better right to such administration, will revoke the prior letters and issue substitutionary letters to him.” In re Fisher’s Estate, 118 N. J. Eq. 599; 180 Atl. Rep. 633.

The proceedings on the application for letters of administration of this estate are accordingly re-opened and the letters of administration granted to Helen Mae Vealie of the goods, chattels and credits of Joseph J. Vealie are revoked.