137 A. 157 | N.J. Super. Ct. App. Div. | 1927
An order of the surrogate of Essex county admitting to probate the last will and testament of James G. Barnett, deceased, was reversed by the orphans court and an appeal was taken to this court. The contending parties have reached a settlement and have joined in a petition praying that the administrator pendentelite appointed by the orphans court account in this court. They ask it on the ground of greater convenience to facilitate the settlement. The administrator has expressed himself as content to submit himself if this court has jurisdiction to allow his account and to discharge him of his trust. He may with propriety account in either court, primarily in the orphans court; in this court if it takes over the administration of the estate and orders him to do so. The sole duty of an administrator pendentelite is to conserve the estate during the litigation. The assets are in custodia legis; he is the custodian. Davenport v.Davenport,
When the cause is in this court on appeal, the administratorpendente lite, upon the termination of his trust, may, and must when ordered, account to the executor or administrator in the court appointing the executor or administrator; in this court if the case is retained, or in the orphans court if the record is remitted. If, on appeal, no appointment of executor or administrator has previously been made in the orphans court, this court, upon either affirmance or reversal, retains the cause and grants letters. This is the common practice, although the court may, in its discretion, remit the cause for the appointment to be made in the orphans court. If the appointment has been made below and the decree is affirmed, the cause is remitted. In Read v.Drake,
The question as to what extent the jurisdiction of the orphans court, in the administrator of an estate, is superseded by an appeal to this court, considered by Chancellor Walker (In reWandell,
As the appeal now stands, upon the settlement, an order denying probate will be entered and an administrator will be appointed by this court, and the administrator pendente lite will account to such administrator in this court. *227