Opinion
01-17-1899
McCarthy et al. v. McCarthy et al.
David J. Pancoast, for petitioners.
Bill by James McCarthy and others against John J. McCarthy and others for partition. Heard on petition of Elizabeth Ahem and another, as trustees under the will of Joseph McCarthy, deceased, for the payment to them of the share of such Joseph McCarthy in the proceeds of the sale. Referred to a master.
David J. Pancoast, for petitioners.
GREY, V. C. This is a petition, filed by Elizabeth Ahern and Helen McCarthy, as trustees under the will of Joseph McCarthy, deceased, asking that there be paid to them the sum of $1,213.12, now in the registry of this court, as the share of Joseph McCarthy, deceased, in the proceeds of a sale made under the order of this court in the above-entitled cause. Joseph McCarthy died in March, 1891, leaving, him surviving, his widow, Georgina, and his two minor children, Daniel and Jennie, all of whom live in England. In May, 1891, the petitioner Elizabeth Ahern, who was named in the will as sole executrix, probated it in the high court of justice, probate, divorce, and admiralty division, of England, where the original remains on file, and undertook the administration of the estate. The petitioners also accepted the trust named in the will. A copy of the will is annexed to the petition. The only portion affecting this case is the residuary clause, which is in these words: "The remainder of my property, of every description, real, personal, or mixed, I leave to the abovementioned trustees, to be held by them, on trust, for the benefit of my wife and children, as follows, that is to say: One-third to my wife, one-third to my son, and the remaining one-third to my daughter." The attestation clause is in these words: "Signed by above testator in our presence, who, in his presence and in the presence of each other, present at the same time, have subscribed our names as witnesses. Elizabeth Ahern. Bessie Pierce." The witness Elizabeth Ahern is the same person who is named in the will as the executrix, as one of the trustees, and as residuary legatee in the trust. The petition recites the due execution of the will in all the particulars required by our statute, and declares that the petitioners are entitled to have the fund above referred to paid into this court upon the trusts set forth in the will. They pray that an order may be made directing the payment of the fund to them, and counsel now move for an order of course, directing the payment of the fund in court to the petitioners, without reference to a master or further inquiry. The petition is verified by the ordinary affidavits of the petitioners that the facts therein stated are true, etc. In aid of the petition there is offered a certified copy of the will, extracted from the high court of justice, probate division, etc., under seal of the district registrar, Bodmin district, to which is added a verification of the signature of the registrar, and of his seal, under the hand and official seal of the United States consul general at London. There is also added a certified copy of the oath of Elizabeth Ahern to the effect that she believes the will to be true and genuine, and that she will well and faithfully administer the estate. This is also under certificate of the district registrar. None of these certificates exhibit the proofs made at the time of the probate of the will in England. The only reference in the certificate to the proof of the will in England is as follows: "Proved at Bodmin, the twelfth day of May, 1891, by the oath of Elizabeth Ahern, seamstress, the aunt, the sole executrix, to whom administration was granted."
The share of Joseph in the proceeds of the partition sale remaining in this court is real estate. Lerch v. Oberly, 18 N. J. Eq. 578. The decedent does not appear to have done anything, since the judicial sale of the land by the master, manifesting an intention to change his share from its character as real estate into personal property. As real estate, the decedent's share would descend to his heirs at law, unless it be shown that by a will, lawfully executed to pass real estate in New Jersey, he devised the property to other persons. This presents the question whether the petition and proofs submittedhow the due execution of a will in accordance with the requirements of the statutes of this state. The foreign certificates show he execution of the will and its probate in England. The statute of 1713, which may be found in 1 Gen. St. p. 876, § 115, under he head of "Conveyances," provides that copies of a will made in Great Britain, by which lands in New Jersey are devised, certified under the seal of the office where the will is proved, may be given and shall be received before any court within this province, etc. This act is still in force. See 4 Griff. Law Keg. p. 1241, § 72; Graham v. Whitely, 26 N. J. Law, 254-259; Nelson v. Potter, 50 N. J. Law, 328, 15 Atl. 375. Mr. Griffith, in commenting on this statute, declares that under it the will must appear to be executed in such manner as our law requires for the devising of real estate lying here. Ubi supra, note 1. And it was held, in Allaire v. Allaire, 37 N. J. Law, 319, that the transcript of the record of the probate of a will must contain the proofs as required by the statute, without which the transcript cannot be received in evidence. The verification of the will by the tender of the certificate of proof before the English court fails, because copies of the depositions of the witnesses in making the probate are not certified.
Irrespective of the sufficiency of the proof submitted, however, no order of course should be made for the payment of the proceeds of the sale to the petitioner, for the following reasons: It was Joseph McCarthy's estate which produced the funds. He was the party to the partition suit for whose benefit the fund came into court. It is real estate. Lerch v. Oberly, ubi supra. There has never been any ascertainment of the persons who are, as his heirs or next of kin, interested in the fund. It is necessary that they should be identified, and notified of a proceeding which so clearly affects their interests. The heirs and next of kin should be given a day for a hearing before payment should be made,—the heirs, that they may have an opportunity to insist that the fund has descended to them as real estate, and to deny, if they choose, the efficacy of the alleged will; the next of kin, that they may also show that the decedent had in some way ratified and accepted the conversion from realty into personalty.
Another reason for further inquiry is that by the terms of the will, a copy of which is annexed to the petition, the petitioners have power to "act as guardians" for the children who are yet minors. Under the will, or as heirs at law, it is clear that the children have a beneficial interest in the fund. Both the petitioners and the minor children are residents of England. This situation brings the matter very closely to that condition of things when, under section 9 et seq., p. 1617, 2 Gen. St., proofs must be submitted that security has been given, etc., before an order can be made removing the property, etc.
An order of reference should be made to a master to summon the parties interested, and to ascertain and report upon the truth of the matters set forth in the petition, and whether the prayer of the petition should be granted, and, if so, upon what terms.