Opinion
Submitted October term, 1936.
Decided January 22d 1937.
1. The surrogate having admitted the will here in question to probate it follows that he necessarily determined that no doubts arose on the face of the will. The will must therefore stand as probated and hence, with certain words stricken out and certain interlineations made, there is no ambiguity.
2. The decree of a surrogate admitting a will to probate is not subject to collateral attack except for fraud or want of jurisdiction. If the change in one of the clauses of the will was made after execution, it should have been determined by a proper proceeding before the orphans court.
On appeal from a decree of the court of chancery advised by Vice-Chancellor Kays, who filed the following opinion:
"This matter comes before me on a motion to strike out the bill of complaint, first, on the ground that this court has no jurisdiction to set aside or modify the probate of a will before the surrogate and, second, that this court will not undertake to alter the terms of a legacy by attacking the probate of a will and, third, because the complainant has no interest in the will as probated.
"The facts in the case are as follows: The will of Gustave Pitsch, deceased, was probated before the surrogate of Bergen county and letters testamentary issued thereon. I understood from counsel at the argument that no caveat was filed against the probate of the will and no appeal was taken from the probate.
"Complainant, The Christian Orphan Home, filed a bill asking the construction of the will for the purpose of determining the interests of the complainant and defendant as appears by the third clause. The third clause reads as follows:
"`Third: After these bequests of $3,000 — have been paid, I wish my American Estate to be divided into two equal parts.
Catholic (St. Joseph's)
One half to go to the Lutheran Orphan Asylum for boys in Englewood Cliffs
Fort Lee, N.J., and the other half to go to the Catholic Orphanage for boys: called: Mary Help of Christians School for Orphan Boys, Route 2, Box 327 P. Tampa, Fla.,
turn over please
both however subject to conditions, which I will outline in a letter to each of the beneficiaries, and which will be attached to this document and shall be part of this my last will and testament. —'
"The sole question argued before me was whether this court can construe the will in such manner as to determine that the erasure "Lutheran" should stand and the words "Catholic (St. Joseph's)" should be declared null and void as an erasure and interlineation after the execution of the will. It was admitted at the argument that the erasure and interlineation were made by the testator in his own handwriting. There is no allegation of fraud or mistake in the bill. It seems to me that the surrogate by admitting the will to probate necessarily determined that no doubts arose on the face of the will. Such being the case the will must stand as probated. If the will stands as probated with certain words stricken out and certain interlineations made there is no ambiguity.
"Vice-Chancellor Leaming, in the case of Crawford v. Lees, 84 N.J. Eq. 324, said:
"`A surrogate, in probating a will, holds a court and exercises judicial functions, and his decree is not subject to collateral attack, except for fraud or want of jurisdiction.'
"Neither fraud or want of jurisdiction of the surrogate is alleged in the bill of complaint. If the change in the third clause of the will was made after execution it should have been determined by a proper procedure before the orphans court. This court cannot collaterally attack the probate of a will except for the reasons above stated. Counsel for complainant argues that this court has concurrent jurisdiction with the orphans court for the construction of ambiguous parts of a will and cites a number of cases alleged to sustain his contention. It does not seem to me that the question involved here is the construction of the will. The question now involved is whether after probate there is any ambiguity to construe.
"I have, therefore, reached the conclusion that under the allegations of the bill this court has no jurisdiction to determine the question in controversy and I will advise an order dismissing the bill."
Mr. Eznick Bogosian and Messrs. Bauer Ranker, for the complainant-appellant.
Messrs. Morrison, Lloyd Morrison ( Mr. William T. Morrison, Jr.), for the defendant-respondent Sisters of St. Joseph of Peace.
Messrs. Hulst, Hennessy, Mowry Widnall ( Mr. Frank H. Hennessy), for the defendants-respondents Guaranty Trust Company of New York and Paul H. Voegeli, executors.
We agree with the conclusions determined in the court of chancery. The decree below will be affirmed.
For affirmance — THE CHIEF-JUSTICE, TRENCHARD, PARKER, CASE, HEHER, PERSKIE, HETFIELD, DEAR, WELLS, WOLFSKEIL, RAFFERTY, COLE, JJ. 12.
For reversal — None.