Opinion
Argued October 20, 1952 —
Decided October 28, 1952.
Appeal from the Superior Court, Chancery Division.
Affirmed.
Before Judges JAYNE, PROCTOR and SCHETTINO.
Mr. Nathan C. Staller argued the cause for appellants ( Mr. Irving Shenberg, attorney).
Mr. Barney B. Brown argued the cause for respondents.
The present action is supplementary to that reported under the title In re Schubert, 7 N.J. Super. 48 ( App. Div. 1950), certif. denied, 5 N.J. 177 (1950). Its object was to obtain a judicial construction of the decedent's will and a determination of the interests, if any, of the plaintiffs, as decedent's next of kin, in certain assets of the estate. 19 N.J. Super. 1 ( Ch. Div. 1952).
The construction ascribed to the will by the court resulted in the entry of a judgment awarding to the plaintiffs and payable by the defendant, individually and as administratrix, the sum of $3,254.27.
We conclude from our review of the record that the defenses of laches and res adjudicata were in the circumstances untenable. While we do not express our approval of the admission of certain testimony in view of the stipulation that by reason of the incurable and critical condition of the defendant the trial should be conducted as if the defendant were deceased, yet there was sufficient competent evidence adduced to justify the determination rendered by the trial judge. Rules 1:2-20(b); 4:2-6.
Affirmed.