Opinion
02-17-1908
FILLEY v. VAN DYKE et al.
John J. Crandall, for complainant. Godfrey & Godfrey, for demurrant Guarantee Trust Co. Thompson & Cole, for demurrant Atlantic Safe Deposit & Trust Co.
Suit by Mary E. Filley, executrix, against Frederick A. Van Dyke and another. Heard on bill and demurrers. Decree sustaining the demurrers advised.
John J. Crandall, for complainant. Godfrey & Godfrey, for demurrant Guarantee Trust Co. Thompson & Cole, for demurrant Atlantic Safe Deposit & Trust Co.
GARRISON, V. C. The demurrers in this suit were filed by the Guarantee Trust Company and by the Atlantic Safe Deposit & Trust Company.
The complainant is the executrix of the will of her mother, who was entitled to a distributive share of the estate of Sarah E. Buck, deceased, late of Atlantic county. Of the estate of Sarah E. Buck Frederick A. Van Dyke and William B. Van Dyke were administrators, under appointment of the surrogate of the county of Atlantic. Subsequent to their appointment the orphans' court of Atlantic county substituted the Guarantee Trust Company of Atlantic City in place of Frederick A. Van Dyke.
The bill charges that the estate of Sarah E. Buck has never been settled, and no decree of distribution has been obtained from the orphans' court of Atlantic county. It charges that one of the administrators, namely, Frederick, has refused to turn over to the substituted administrator the assets of the estate, and that the bondsman of Frederick is liable therefor. It also charges that the substituted administrator has failed to compel the turning over to it of the assets by Frederick. There are some charges of fraud in general language, but no specific charges thereof. I cannot find anywhere in the bill any charges which show that the whole matter cannot be dealt with by the orphans' court of Atlantic county. The only thing which would suggest that it could not is that the judge of that court has had some relations with this estate as counsel or otherwise, or has been counsel for some of the parties. It is not distinctly charged that he has acted in the suit as judge, but there is an intimation that such is the case. It is possible that this would be a special cause or reason, within the meaning of the authorities, for taking over the administration in this court. If distinct charges of fraud are made, or of the existence of a situation which cannot be dealt with in the orphans' court, this court will take over the administration of this estate. But upon the present bill as framed I do not find any specification of special reason or cause which should induce this court to interfere with the administration of the estate in the orphans' court of Atlantic county. There is nothing in the bill, so far as I can see, which requires the interposition of equity, nothing which is not the proper subject of the jurisdiction of the orphans' court. Under these circumstances this court will not take over the case. Wyckoff v. O'Niel (N. J. Ch.) 63 Atl. 982 (Garrison, V. C).
The effect of sustaining the demurrer will not, however, be to deprive the complainant of the right to file a bill with specifications of facts, if such exist, which would constitute a special cause or reason inducing this court to take over the administration from the orphans' court; and, if counsel for the complainant so desires and finds it necessary, such a reservation will be made in the order.
I will advise that the demurrers be sustained, with costs.