Opinion
Argued January 29, 1951 —
Decided February 6, 1951.
Appeal from Superior Court, Chancery Division, Thomas J. Stanton, J.
Before Judges FREUND, PROCTOR and ROGERS.
Mr. Abraham J. Slurzberg argued the cause for the appellant ( Mr. Joseph B. McFeely, executor of the last will and testament of Bernard M. McFeely, and attorney pro se).
Mr. Victor S. Kilkenny argued the cause for the plaintiff-respondent ( Messrs. Otis Kilkenny, attorneys).
On appeal from a judgment of the Superior Court, Chancery Division, where Judge Thomas J. Stanton filed the following opinion:
"Mary McFeely died intestate and a resident of Hudson County on June 4, 1942. Her brother Bernard N. McFeely was appointed administrator of her estate on June 10, 1942, by the Surrogate of Hudson County and he duly qualified as such. He died on August 8, 1949. Plaintiff, a niece of decedent, charges that no account of his administration was ever filed and no distribution was made to her and the other next of kin. She seeks the appointment of some fit and proper person as substitute administrator.
"At the time the administrator was appointed the Ordinary and the Surrogate of Hudson County had concurrent jurisdiction to grant letters of administration. It is the contention of the respondents that the Surrogate, having granted the original letters of administration, the estate remains under his jurisdiction and the application for the grant of letters of substituted administration should be made to him.
"R.S. 3:7-61 provides in part as follows:
"`When a sole or sole surviving or remaining executor or administrator, with or without the will annexed, dies or is removed or discharged by a court of competent jurisdiction after qualifying and entering upon the duties of his office but before the completion thereof, the vacancy so created shall, except as hereinafter in this section provided, be filled by the appointment of a fit person to exercise the vacated office, such person to be denominated substituted administrator with the will annexed or substituted administrator, as the case may be.
`The appointment shall be made by the issuance of letters of substitutionary administration, with or without the will annexed as the case may be, by the surrogate of the proper county or the ordinary in the manner and upon the conditions prescribed for granting letters of administration to the first administrators in other cases.'
"Article XI, Section IV, paragraph 8 of the Constitution of 1947 provides for the transfer of pending causes and proceedings upon the taking effect of the Judicial Article of the Constitution. Two pertinent clauses thereof are as follows:
"`(b) All causes and proceedings of whatever character pending on appeal or writ of error in the present Supreme Court and in the Prerogative Court and all pending causes involving the prerogative writs shall be transferred to the Appellate Division of the Superior Court;
`(d) All causes and proceedings of whatever character pending in the Prerogative Court other than those stated shall be transferred to the Chancery Division of the Superior Court;'
"Article XI, Section IV, paragraph 10 of the Constitution of 1947 provides as follows:
"`Upon the taking effect of the Judicial Article of this Constitution, all the functions, powers and duties conferred by statute, rules or otherwise upon the Chancellor, the Ordinary, and the Justices and Judges of the courts abolished by this Constitution, to the extent that such functions, power and duties are not inconsistent with this Constitution, shall be transferred to and may be exercised by Judges of the Superior Court until otherwise provided by law or rules of the new Supreme Court; excepting that such statutory powers not related to the administration of justice as are then vested in any such judicial officers shall, after the Judicial Article of this Constitution takes effect and until otherwise provided by law, be transferred to and exercised by the Chief Justice of the new Supreme Court.'
"It follows that the Chancery Division of the Superior Court has the functions, powers and duties of the Orinary prescribed in R.S. 3:7-61 since no law or rule of the Supreme Court has provided otherwise.
"No case passing on the issue raised here has been cited and I can find none. The substantial argument of the respondents is that in the interest of orderly procedure the matter should continue in the court which first acquired jurisdiction and that the instant application should be made there; and they cite 34 C.J.S., § 1020 and 14 Am. Jur., § 243.
"Plaintiff, while agreeing with the general proposition, that where a court of competent jurisdiction acquires jurisdiction of the subject matter of a case, its authority continues subject only to the appellate authority until the matter is finally and completely disposed of, and that no court of coordinate authority is at liberty to interfere, nevertheless contends that the plain language of the statute vests concurrent jurisdiction for the grant of letters of substitutionary administration. There is no expression in the statute that the application for such letters should be made to the court which granted the original letters. It is pointed out that the Legislature in P.L. 1941, c. 323, R.S. 3:7-63, in dealing with the appointment of a substituted guardian provided as follows:
"`A vacancy in a guardianship shall be deemed to arise when a sole or sole surviving or remaining guardian dies or is removed or discharged after entering upon the duties of his office and before completing such duties.
`The court which granted him letters, or in the case of his removal or discharge the court removing or discharging him, shall fill the vacancy by the appointment of a fit person to exercise the guardianship, to be denominated "substituted guardian."'
"It is argued that if the Legislature intended to limit the power to appoint a substituted administrator to the court which made the original appointment, it would have done so by express language as it did in the case of guardianship.
"Plaintiff makes the practical observation that, if the contention of the respondents were sustained, the surrogate would lose jurisdiction of any application made to him in this case because of the certainty that a dispute would arise over the grant of substitutionary administration and the matter would then be removed to the Probate Division of the County Court in accordance with R.S. 3:7-5.1, which provides as follows:
"`The surrogate of the county in which a decedent resided at the time of his death shall have the power and authority to grant letters of administration on the estate of such decedent, in all cases where administration may legally be granted, unless a dispute arises as to the right of administration, in which case he shall issue citations to all persons concerned to appear in the orphans' court of the same county, which court shall hear and determine the matter in controversy.'
"It is my conclusion that the explicit language of the statute governs the disposition of this motion. It plainly confers jurisdiction upon this court, as the successor of the Ordinary, as well as upon the surrogate of the proper county, to grant letters of substitutionary administration. The objection of the respondents is overuled and this court will proceed to hear the merits of the application."
The judgment is affirmed for the reasons expressed in the opinion of Judge Stanton in the court below.