Joseph Fitz Randolph.

A review and index of succession law in the state of New Jersey, including statutes and decisions from 1776 to 1905, relating to testamentary and probate law, probate courts, descent, escheat and survivorship of land, curtesy, dower, presumption of death, actions for wrongful death, collateral inher online

. (page 1 of 58)
Online LibraryJoseph Fitz RandolphA review and index of succession law in the state of New Jersey, including statutes and decisions from 1776 to 1905, relating to testamentary and probate law, probate courts, descent, escheat and survivorship of land, curtesy, dower, presumption of death, actions for wrongful death, collateral inher → online text (page 1 of 58)
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State of New Jersey


Statutes and Decisions from 1776 to 1905

Relating to Testamentary and Probate Law, Pro-
bate Courts, Descent, Escheat and Survivorship
OF Land, Curtesy, Dower, Presumption of
Death, Actions for Wrongful Death,
Collateral Inheritance Tax, &c.







Copyright 1906
By Joseph F. Randolph.



The text of tliis work is intended as a review and not as
a treatise, and is confined to points that have been actually
decided or enacted in Xew Jersey. It is primarily a siini-
raary of the statutory changes and their date and duration,
and closes with a chronological table of the more important
statutory changes.

For the full and repeated statutory citations the reader
is referred by foot notes from the text to the index. In
like manner as to cases decided, and for the purpose of
avoiding needless repetition, the text indicates or summarizes
the matter of the index of the main topic, supplementing
it by cross-reference to other topics and by assembling
points that are scattered through other topics of the index.
The statements of the text, in default of more particular
citation, are supported by the statutes and cases enumerated
in the index of the main topic referred to at the head of the
section or paragraph. The text is referred to in the index
by its own section numbers.

It is believed that with the help of this index the standard
text books present the law of ISTew Jersey upon the whole
subject matter as it is now, and as it has been changed from
time to time since the Colonial days.

For brevity, cases are numbered and cited by their num-
ber, all affirmances and reversals being shown in the table of
cases by the original case number with a or b added. Points
reversed are omitted and only the reversing decision cited.
If the case is affirmed without an opinion, the decision below
is the one cited.

In like manner, the statutes are numbered and cited by
their number (e. g., S. 100) — and the compilations and re-
visions are referred to as Rl, R2, &c., with the first paging

iv ^NOTE.

of the subject-title and the required section. The tables of
statutes and of revisions follow the table of cases. The date,
(indicated in the index in brackets) is that of the passage
of the act. The second date, if any, indicates its modifica-
tion or repeal. If no second date follows, the statute is still
in force. Cases construing the statute are referred to by
case number with a letter 0. following the citation of the

All statutes from 1776 to 1905 inclusive, and all cases
reported in ISTew Jersey Law Reports 1-71, New Jersey
Equity Reports 1-67, and Atlantic Reporters 1-62 inclusive,
should be found in this index.

The index is confined, as to guardians and trustees to tes-
tamentary guardians and trustees — as to curtesy and dower
to estates vested or disputed in the survivor, excluding in-
choate rights — and as to gifts, to those taking effect or dis-
puted against the estate of a deceased donor.

It is interesting to note the continuity and persistence of
substantial statutes once adopted — and to find that the inces-
sant and rapidly increasing changes (an average of four new
statutes a year for one hundred and thirty years and of one
in a month for the last twenty years) relate in general to
points of minor importance, and often serve to correct inad-
vertences and omissions in the earlier draft.


June, 1906.




1. Conflict of Laws — Lex Loci.

2. Lex Temporis.

3. Constitution and Jurisdiction of New Jersey Courts. Sur-


6. Orphans' Court — constitution.

7. jurisdiction — in general — probate.

8. jurisdiction as to letters — security — revoca-


9. jurisdiction as to assets and debts.

10. jurisdiction as to accounting and distribu-


11. jurisdiction as to actions — miscellaneous —


12. Prerogative Court — constitution — probate jurisdiction.

13. action on bond — appellate jurisdiction.

14. Chancery — jurisdiction — in general.

15. statutory jurisdiction.

16. Courts of Law — jurisdiction.


There is no statute regulating these questions except as
to the force of British Statutes. Until 1799 they had been
kept in force "so far as applicable" by the constitution of
1776 — which also retained the common law "as heretofore
practiced" in the colony. It was provided by Act of 1799,
re-enacted in 1819, and repealed in 1846, that British Stat-
utes should have no force or authority in l^ew Jersey.^
Until 1799 the Statute of Wills, 21 Henry 8 c.4, was in
force in this state.'

Under Common Law rules the law of the domicil of the
decedent has been held to determine the character of the

1 See Index Conflict of Laivs. 3 Case 133.

2 See Index British Statutes.

1 (1)

2 Succession Law of ISTew Jersey.

testator's proiDerty, e.g., as community property^ — the legiti-
macy of his children^ — the validity of his will as to his per-
sonal property, even though the bequests were payable out
of foreign realty^ — the construction of a will of personal
projDerty' — and the character of its testamentary trusts^ and
the distribution of intestate personal property.^ Actual,
statutory and matrimonial doniicil may all come in ques-
tion. ^^

The law of the place where real i:»roperty is situated de-
termines the validity of a devise of land^^ — as well as its
fo'iin^^ — and construction.^^ It determines also the right of
dower^* — and the necessity for election as to dower^^ — each
devise being separately considered in this respect.-^ ^ It also
determines the right and manner of selling decedent's land^'^
— the character of the proceeds of sale,^^ even when brought
into the jurisdiction of another domiciP^ — and the character
of a trust under which the sale of land is made.-'^

On the other hand, the statutory right of action for the
death of decedent is determined by the law of the place of
the accident.^^


In general the law of the time of testator's death governs
the descent of his land in determining who are his heirs on
failure of a contingent remainder.- It also governs the con-
struction of his wilF— as to the estate devised,^ and the in-
clusion of after-acquired real property,^ even under tlie
description of a farm "that I now own"^ and the meaning
of the testator's expression "according to law."'^ But the
application of the collateral inheritance tax to the execution
of a testamentary power of appointment is referred back to
the death of the original testator.^ And a will mav be con-

4 Cases 1780a, 1817, 1817a. 17 Case 1.570.

5 Case 858. 18 Case 730.

6 Case 1400. 19 Case 1417.

7 Case 1780a. 20 Case 1417.

8 Case 1045. 21 Case 1108.

9 Cases 849, 897, 1817. 1 See Index Lex Temporis.

10 Case 1817a. 2 Cases 240, 240a.

11 Cases 1034, 1463. 3 Cases 1763, 2103, 2163.

12 Case 388. 4 Case 1469.

13 Case 1780a. 5 Case 628.

14 Case 876. 6 Case 259.

15 Case 1780a. 7 Case 628.

16 Case 251. 8 Case 321.

Laws and Courts. 3

strued to speak from the date of its execution, if plainly so
intended.^ And this has been the constrnction of the stat-
utes preventive of lapse.^^

On the other hand, the law of the time of distribution has
been held to determine who are the legatees described in the
will as "next of kin.''^^


The surrogate is a dejiuty to the ordinary.^ He is also
both judge and clerk of his own court.^ He is clerk of the
Orphans' Court by Act of 1784 and later revisions — and
cannot, since 1797, sit in the Orphans' Court as judge — nor,
since 1796, act as attorney or proctor in that gourt. And
since 1892 employes in his office are disqualified in like man-
ner. The statutes require of him, since 1781:, an official oath,
and since 1799 an official bond.

By Act of 1784 there is to be one surrogate for each county
— at first appointed by the ordinary — after 1822 by legis-
lative joint meeting — and since 1846 by popular election.
By Act of 1784 and later statutes his jurisdiction is limited
to his own county. His probate jurisdiction is in the county
of the decedent's domicil.^ But in the case of a non-resident
he has probate jurisdiction, if there is personal property in
his county, although the will has not been proved in the for-
eign domicil.^ His jurisdiction includes the probate of wills
— which he is required to record^ and to transmit to the
register of the Prerogative Court. It includes also the grant-
ing of letters of administration,'^ administration c. t. a.,®
administration d. b. n.^ and substituted administration. -^^
This includes, since 1838, the gTanting of administration
on the estate of a non-resident in reasonable cases — limited,
since 1880, to non-residents who have left real or personal
property in the county. The jurisdictional fact of non-
residence is to be determined by the surrogate, and his juris-

9 Case 1819. 6 See Index Record of Wills.

10 Cases 438, 1407. 7 See Index Administrator.

11 Case 1016. 8 See Index Administrator c.

1 See Index Surrogate. t. a.

2 Case 410. 9 See Index Administrator d.

3 Case 1479. 6. n.

4 Case 343. 10 See Index Snhstituted Ad-

5 Case 9fi6. ministrator.

4 Succession Law of New Jersey,

diction rests on it, and is not excluded, as in other cases, by
a contest as to right of administration.^^

He may also, since 1885, grant letters of administration
upon statutory presumption of decedent's death.^^ And
since 1871 he may grant letters of guardianship when the
Orphans' Court is not in session. In all cases of probate or
letters, except in the case of administration on the estate of
a non-resident, the jurisdiction is limited tO' uncontested
cases — and is at times shared by, or shifted to, the ordinary
or Orphans' Court, apparently by the careless drafting of
the statutes. If contest arises the jurisdiction is transferred
by surrogate's citation to the Orphans' Court.

4. In granting letters of administration the surrogate can-
not assume jurisdiction by consent of parties,^ ^ nor re-open
his 0"wn appointment, pending appeal from it, and make a
fresh appointment.^^ So, he cannot resume jurisdiction
over the probate of a will where it has been once lost by
caveat filed and citations issued, though the caveat is after-
ward withdra^vn.^^ So, where the jurisdiction has been ex-
hausted by a probate gi'anted by him, he cannot re-open the
probate by a rule returnable to the Orphans' Court.^^ But
he may resume jurisdiction after a caveat filed and with-
drawn before citations are issued. ^'^ The surrogate was au-
thorized by Act of 1825 to file and record copies of foreign
probate of wills and letters of administration and guardian-
ship. In 1828 this was changed to the recording of foreign
probates and issuing ISTew Jersey letters upon them — which
were not subject to appeal. -^^ He had authority also to record
the copy of a will probated in another state, or in a foreign
country, as evidence of title by Act of 1866, which continued
in force imtil 1886. Since 1886 the statute has required the
entire foreigTi record to be recorded. Since 1891 the statute
has provided for the probate of a foreign will in the Preroga-
tive and Orphans' Courts by means of the foreign record ;
and since 1898 this probate may be made by the surrogate
on proof of the due execution of the original will. The
surrogate may also, by Act of 1896, record foreign letters
as authority for the foreign representative to appear in ac-
tions or execute releases relating to land in that county. -^^

11 Case 1212. 15 Case 1777.

12 See Index Death, Presump- 16 Case 1210.

Hon of. 17 Case 1618.

13 Case 790a. 18 Case 263.

14 Case 1100. 19 See Index Foreign Will, etc.

Laws and Courts. 5

The surrogate's action in recording the foreign probate
under the statute is judicial, and the record is competent
evidence, irrespective of appeal from or reversal of the
original foreign probate. ^*^ The general effect of these stat-
utes and their construction will be considered hereafter.^'
In general the surrogate's letters have the same force and
effect as those of the ordinary.^^

5. Inventories of the executors, administrators and guard-
ians appointed by the surrogate or by the Orphans' Court
are filed with the surrogate — and as well, since 1891, those
of the ordinary's appointees.^^ Renunciation of letters are
also filed with him.*'* Accounts are audited by him and
reported to the Orphans' Court for settlement,^^ and deposi-
tions taken by him in matters that are before him, and in-
vestments retained or sold in the case of his appointees by
his order.^^ He is also charged with the appraisal and col-
lection of the collateral inheritance tax.^^ And by Act of
1871 the surrogate in office for the time being acts and signs
all papers as such.


The Orphans' Court was established in 1784, and was
then held by three or more judges of the Court of Common
Pleas — since 1855 by any two of them, with the Supreme
Court judge of the circuit as president .judge — including,
since 1887, the law judge of the county, if any; and since
1894 the law judge may preside in the absence of the Su-
preme Court judge. Since 1895 the court may be held by
the judges of the county courts, and since 1898 by the Su-
preme Court judge and the law judge of the Court of Com-
mon Pleas, or either of them. Since 1883 the law judge of
another county may, by request, act in the place of the law
judge of the county.

Since 1784 the surrogate has been clerk of the court. He
cannot, since 1820, nor can his employe since 1892, act as
counsel or proctor in the court.

Masters and examiners in Chancery act as such in the Or-
phans' Court by Act of 1855. And the sheriff and constables

20 Case 348. 25 See Index Accounting.

21 See Infra, sec. 125. 26 See Index Investment.

22 See Index Letters. 27 See Index Collateral Inheri-

23 See Index Inventory. tance Tax.

24 See Index Renunciation. 1 See Index Orphans' Court.

6 Succession Law of New Jersey.

of the county serve as its officers. And an official oatli is
required from both judges and surrogate.

In 1855 the four tenns a year were reduced to three, and
in 1874 it was provided that the court shall always he open
for citations and return of process.

-Jurisdiction — in General — Probate.

The jurisdiction of the Orphans' Court is general" — and
need not be specially averred.^ And it cannot be questioned
collaterally.'* Although of limited scope, it is not confined
to orphans or minors.^

It has jurisdiction of the probate of wills only where dis-
pute arises before the surrogate and a caveat is issued — after
which its jurisdiction is exclusive of the surrogate. Its juris-
diction as to probate is concurrent with that of the ordinary
— and is subject, to appeal to the Prerogative Court. *^ The
jurisdiction as to original probate of testator's will lies in the
place of his doanicil.'^ After caveat filed. the probate juris-
diction of the Orphans' Cburt may be lost by withdrawal of
the petition for probate,^ unless the court has fixed a time
for hearing upon the caveat.®

As to foreig-n wills, the Act of 1891 and the Revision of
1898 gave concurrent jurisdiction to the ordinary and the
Orphans' Court to admit a will to record as evidence of title
by copy of the foreign probate.^ ^

8. Jurisdiction as to Letters — Seciu-ity — Revocation.

The Orphans' Court has not only jurisdiction to grant
letters testamentary on probate of a will, but it has authority
in disputed cases to grant letters of administration on the
estate of a resident decedent — and from 1885 to 1898 on the
estate of a person presumed to be dead, whether resident or
non-resident — and until 1905 on the estate of an intestate
leaving no next of kin.^^ In the appointment of adminis-
trator local assets will confer jurisdiction.^^ But jurisdic-
tion to appoint an administrator for a non-resident intestate

2 Cases 182, 1140. 8 Case 946.

3 Case 1140. 9 Case 1777.

4 Case 228. 10 See Index Foreign Will,

5 Case 6. Probate and Letters.

6 See Index Appeal. 11 See Index Administration.

7 Case 343. 12 Case 658.

Laws and Courts. 7

in 1901 will not be implied from its jurisdiction in tlie case
of a resident.^ ^

The Orphans' Court may also appoint a testamentary
trustee on the death or removal of his predecessor, or on the
death or renunciation of the trustee first appointed by it/^
but it cannot appoint a trustee for a separate share which is
part of an entire trust ;^^ nor determine the capacity of a
foreign corjDoration as trustee;^® nor appoint another trustee
in its place except on its neglect or refusal to act.^^

It may appoint a guardian on removal of his predecessor
for want of security or otherwise, or for a non-resident ward ;
and may control a testamentary guardian's custody of his

The Oi-j^ihans' Court, on granting letters, may fix the
amount of security required from administrators, guardians
and trustees — and since 1828 from a non-resident executor.
This is dispensed with since 1880, if so expressed in the will.
It might also require bond from an executor in case of danger
of waste by Act of 1870 — and from an executrix on her mar-
riage^ ^ — as well as further security when required^*^ — and
may discharge a surety from further liability on the bond.^^

The Orphans' Court may also remove a trustee and ap-
point a successor on his removal-^ — or revoke the letters of
an executor, administrator or guardian, and appoint a suc-
cessor.-^ It cannot, however, pending an appeal from its
appointment of administrator, remove its own appointee and
appoint another.-'*

It may appoint a successor to an executor as trustee of the
trust vested in him,-'^ though only by implication^^* if not
vested in him as executor.-^

13 Case 1212. 22 See Index Removal of Trus-

14 See Index Trusts and Tnis- tee; Trusts and Trustees.

tees. 23 See Index Revocation of

15 Case 1551. Letters; Guardian; Mar-

16 Case 1172. ried Woman.

17 Case 1173. _ 24 Case 1100.

18 See Index Guardian. 25 Case 253.

19 See Index Bond. 25* Case 1551.

20 See Index Administrator; 26 Case 255.

Bond; Guardian.

21 See Index Discharge of ^


8 Succession Law of New Jersey.

9. Jurisdiction as to Assets and Debts.

Tlie Orj)hans' Court has jurisdiction to order an examina-
tion into the condition of an estate.^" It may also require
the investment of funds in the hands of the representative,
and may, since 1881, provide for continuing the original in-
vestments of the decedent f^ but cannot direct investments to
be retained contrary to the express direction of the will.^^

It has also jurisdiction as to presentment of claims and
limitation of creditors. ^° And it may pass upon claims pre-
sented, though disputed by a creditor, if they are not dis-
puted by the accountant^^ — but not upon claims disputed by
the executor or administrator,^^ such as the claim of an
executor^^ disputed by his co-executor f'^ except in insolvent

It has jurisdiction also as to insolvent estates,^^ and as
to sale of land for debts.^''^ But as to the latter the statute
must be strictly followed.^^ This jurisdiction is exclusive
of Chancery;^® but will not prevent the equitable remedy
of a judgment creditor as such against heirs and devisees.*"

10. Jurisdiction as to Accounting and Distribution.

The Orphans' Court has jurisdiction over the accounts of
executors and administrators since 1784,*^ and of guardians
since 1Y99,^^ and of testamentary trustees since 1855 — and
in case of dispute, exclusive of the surrogate, as to all ac-
counts of executors, administrators, guardians and testa-
mentary trustees since 1Y84.*^ Since 1891 this jurisdiction
is exclusive of the Prerogative Court, except in the case of
administrators pendente lite appointed by that court. The
Orphans' Court cannot, however, cite a non-resident foreign
executor of a deceased 'New Jersey executor to account in
ISTew Jersey, in the absence of assets in ISTew Jersey.** It
has exclusive jurisdiction to hear and detennine exceptions
to accounts filed with the surrogate.*^ And it may construe

27 See Index Examination into 36 See Index Insolvent Estates,

Estate. 37 See Index Sale of Land for

28 See Index Investment. Debts.

29 Case 1912. ^8 Case 1042.

30 See Index Presentment of 39 Case 1303.

Claims. 40 Case 800.

31 Case 695. 41 See Index Accoiinting.

32 Case 695. 42 See Index Guardian.

33 Case 52. 43 See Index Accounting.

34 Case 1878. 44 Case 1859.

35 Case 164. 45 See Index Exceptions.

Laws and Courts.


decedent's will so far as it may be necessary to determine the
status of an exceptant,^^ or to the passing of the ac-
count.*^ And it may make allowances to the accountant"*®
and allow costs on exceptions to account.'*^ But it cannot
apportion commissions between co-executors after their ac-
counts have been j^assed and the money distributed.^^ The
Orphans' Court jurisdiction as to accounts is concurrent with
that of courts of equity, and in a proper case may be ousted
by such court taking prior cognizance of the matter.^^

The Orphans' Court has jurisdiction also in the distribu-
tion of the estates of intestates since 1795 — and may decree
distribution inider a will since 1872,'^^ but not before the
Act of 1872.^3

It may also require security before distribution to a legatee
for life^^ — and may order the transfer of funds since 1847
to a foreign giiardian,^^ and since 1886 to a foreign trustee.'^®
But it cannot open its own decree of distribution after the
time for appeal has expired.^"^

Wliere it is incidental and necessary to a proper distribu-
tion of the estate, it may construe the will.^®


-Jurisdiction as to Actions — Miscellaneous — and Appellate.

The Orphans' Court has jurisdiction of actions for a legacy
or distributive share since 1855^^ — but only against the per-
sonal representative without joinder of other parties.^^ It
may also entertain an action brought upon the administra-
tion bond,®^ or upon a refunding bond f"^ or between co-
executors for a share of the commissions received by one;^^
and may award costs in such actions.^^

It may also enforce a contract of the decedent for the sale
of land, on the application of his personal representatives, or
of the purchaser, and after j^ublic notice^^ — and may effect a
partition of land in behalf of an infant by ordering an ex-

46 Case 1434.

47 Case 1196.

48 See Index Commissions.

49 See Index Cosis.

50 Case 1729.

51 See Index Accounting.

52 See Index Distribution.

53 Cases 299, 1299.

54 See Index Payment of Leg-

56 See Index Guardian.


66 See Index Foreign Will, etc.

57 Case 650.

58 Cases 914, 1087, 1185, 1669.

59 See Index Distribution.

60 Case 264.

61 See Index Bond.

62 See Index Refunding Bond.

63 Case 1709.

64 See Index Costs.

65 See Index Contract of De-


10 Succession Law of IsTew Jersey.

ellange of deeds. '''^ And it has jurisdiction as to the adoption
of children,"^^ and in jDToceedings, since 1880, to establish
proof of title by descent.*'^ It has jurisdiction for the assign-
ment of dower, and the sale of land for dower, and in certain
cases free from dower.^^ It may now, since 1901, and might
formerly, prior to 1799, order a sale of the land of minor
children for their maintenance"*^ — but has no power since
1799 to make an allowance for the maintenance of decedent's
family,'^^ except as provided by the statute of 1895 pending
contested probate, and by the statutory family exemption. '^^

It may confirm the execution of a testamentary power of
sale by the successor or survivor of the original representa-
tives, since 1888'''^ — or authorize its execution by the guardian
of a lunatic trustee since 1897; but it cannot itself accept

Online LibraryJoseph Fitz RandolphA review and index of succession law in the state of New Jersey, including statutes and decisions from 1776 to 1905, relating to testamentary and probate law, probate courts, descent, escheat and survivorship of land, curtesy, dower, presumption of death, actions for wrongful death, collateral inher → online text (page 1 of 58)