Opinion
03-30-1914
McCARTIE v. MURPHY et al.
William A. Smith, of Newark, for the motion. Frederick M. Pearse, of Newark, opposed.
Bill by Daniel B. McCartie, executor, etc., against John Murphy and others. On motion for preliminary injunction. Order that injunction issue advised.
William A. Smith, of Newark, for the motion. Frederick M. Pearse, of Newark, opposed.
HOWELL, V. C. The bill alleged that Catherine Wright died on January 3, 1906, in this state, where she was domiciled, leaving a last will and testament by which she gave her whole estate to her son John, and appointed the complainant executor thereof. John Wright, the legatee, died about a month before the testatrix, leaving no issue. The will was admitted to probate by the surrogate of Essex county in 1906, and the executor has recently settled his accounts in the orphans' court and obtained a final decree fixing the amount of assets in his hands at $5,511.72. Recently one James Murphy, of Ireland, made claim that he was next of kin to the deceased, and filed a petition in the orphans' court praying that the whole estate be awarded to him as such. The fund in his hands is likewise claimed by the mayor and common council of the city of Newark on behalf of the department of poor and alms. The executor now files his bill for the purpose of withdrawing the litigation over the distribution of the estate into the Court of Chancery, and sets out the rival claims to the fund, and, among other things, prays for a discovery by the claimant, Murphy, of the means whereby he claims to be the next of kin of the decedent, and the names and addresses of the persons by, through, and under whom he claims to occupy that relation to her.
This court has concurrent jurisdiction with the orphans' court of all matters pertaining to the administration and settlement of the estates of decedents. Van Mater v. Sickler, 9 N. J. Eq. 483; Frey v. Demarest, 16 N. J. Eq. 236; Search v. Search, 27 N. J. Eq. 137. But after a proceeding has been begun in the orphans' court this court will not disturb it in its jurisdiction unless there exists some good, equitable reason why it should do so. In this case the reasons urged are the opposing claims above mentioned, and the necessity of a discovery from the claimant, Murphy, of the facts relating to his position as alleged next of kin. The jurisdiction in Prey v. Demarest was sustained largely on the necessity of discovery. And such is the case here; the complainant, who is the custodian of the fund, and therefore acting in a fiduciary capacity on behalf of all persons interested, states that he has been unable to ascertain or determine whether the-said Murphy is entitled to the place of next of kin of the deceased, and has no means of ascertaining the truth of his claim. It is therefore quite manifest that the complainant must have the aid of this court to procure such evidence as may be necessary to properly make a defense to the claim if a defense shall be made, or to investigate it and find out whether it is a true or a false one.
Upon these grounds I think that the injunction should issue, and I will advise an order to that effect.