Citation Numbers: 94 N.J. Eq. 377
Judges: Ordinary, Walker
Filed Date: 3/6/1923
Status: Precedential
Modified Date: 7/25/2022
A caveat having been filed in the office of the surrogate of Atlantic county against the admission to probate of a paper writing purporting to be the last will and testament of Rynear H. Williams, deceased, the testament was admitted to probate after a contest in the orphans court. The order for probate was dated and filed September 25th, 1922. Subsequently ap
“Any person aggrieved by order or decree of the orphans court, of whatever nature, may appeal from the same to the prerogative court; provided, that the appeal, if from an order or decree of the court respecting the probate of a will or right of administration or the fairness of an inventory, shall be demanded within thirty days after such order or decree, and if from any other order or decree, the same shall be demanded within, three months from the malting of such order or decree, unless otherwise specially provided.”
The only question is, is the order for costs and counsel fees one respecting the probate of a will? If it is, it was taken out of time (more than thirty days after the decree) and must be dismissed. If it! is not, then it was within time (less than three months after the decree) and the motion must be denied.
In Hoit v. Hoit, 40 N. J. Eq. 551, a decree was made admitting a will to probate and awarding costs and counsel fees to both sides. Later, an order was entered directing that the decree be amended so as to award a counsel-fee out of the estate to one proctor of the proponent, and later another similar order was made awarding a counsel fee to another proctor of the proponent, and Chancellor Eunyon, as ordinary, held that the provisions of the decree as to costs and counsel fees were part of the decree for probate, from which an appeal was required to be taken within thirty days after entry, and
In re Wandell, 92 N. J. Eq. 195, the orphans court admitted a will to probate. After appeal taken from that court to this court from the decree probating the will, and while that appeal was pending in this court, counsel for the caveator applied to the orphans court for an allowance of counsel fees and expenses to be paid out of the estate. The orphans court made an order awarding counsel fee to the caveator to be so paid. Appeal was taken to this court from that order and allowance, and the executors urged that the order should be reversed because the orphans court was without jurisdiction to entertain the application pending the appeal from probate, and also because there was no reasonable cause for contesting the validity of the will. I, as ordinary, observed (at p. 199) that the question of allowance of counsel fees and expenses was a thing apart from the question involved in the appeal from a decree admitting a will to probate, and, as the orphans court had power to make such am. award, even where probate was denied, such an award, if made, cannot be said in anywise to destroy or impair the subject of the appeal, and I concluded, therefore, that the orphans court had jurisdiction to entertain the application pending the appeal. In re Wandell, unlike Hoit v. Hoit, did not concern the question as to whether an order for expenses in a will contest was a decree respecting the probate of a will. It might well be that, namely, part of the decree respecting probate, and yet the subject matter, namely, counsel fees and costs, is doubtless a thing apart from the probate of the will itself. I therefore hold that there is nothing in the case In re Wandell which overrules or departs from the decision of Chancellor Runyon in Hoit v. Hoit.
If this matter camie to me as an original proposition I might be inclined to hold that that part of 'an order or decree awarding costs and 'counsel fees out of an estate in case of a contest over the probate of a will, whether residing in the original decree, or in the shape of an amendatory, or even independent, order (such awards have been made in all three
Let the appeal be dismissed.