In Re Breckwoldt
This is аn appeal by Dougal Herr, as executor of the will of Bertha Breekwoldt, deceased, and the four residuary legatees named in the decedent’s will, the Fritz Eeuter Altenheim Memorial Day Nursery, Mary Stevens Hammond Memorial Home, and St. Joseph’s Home for the Blind, all charitable corporations, from two orders of the Chancery Division (Grimshaw, J. S. C.) entered on November 9 and November 14, 1955. The earlier of the two orders removed Dougal Herr as executor and vacated the letters testamentary issued to him, and also removes him as a trustee of the trust created under the will of Bertha Breekwoldt for the benefit of the four residuary legatees. Thаt order also restrained Herr from attempting to further exercise the offices of executor and trustee and from making any distributiоn of the assets of the estate. The order of November 9 also contained a 10-day stay in respect of the removal “tо permit an application to be made to the appropriate tribunal for a continuation of the said stay.” The order of November 14 appointed another person as administrator c. i. a. and as substituted trustee. This order directed Herr to forthwith turn ovеr to the substituted administrator all property in his hands.
We certified the matter on our own motion while it was pending in the Appellate Divisiоn.
The will of Bertha Breekwoldt was made in 1940 and in it she appointed Dougal Herr sole executor and trustee. She died on April 10, 1954. Certаin specific legacies, aggregating $24,000, were made to four persons. The will was attacked on grounds of lack of testamentary capacity and undue influence. On the date fixed for the trial of these issues, a settlement was reached between those interested in sustaining the will and the next of kin opposed to the will. By that settlement $110,000 became payable to the objectors to the probate. $10,000 of that amount was paid to the attorneys for the objeetants. The terms of the settlement were submitted to and approved by the court. The
caveat
was then withdrawn and the will proved in solemn form
Judge Grimshaw, sitting in the Chancery Division, on his own motion entered the order to show cause why Herr should not be removed as executor and trustee, and after argument on the motion ordered his removal and the aрpointment of a successor. Two points are made on the appeal. Eirst, the evidence of wrongdoing, which is the basis fоr the executor’s removal, was adduced in a separate disciplinary proceeding; the appellants contеnd that basing the present order thereon deprives the executor of'his constitutional right to a hearing. Secondly, the apрellants, Herr and certain charitable trusts which are the sole remaining beneficiaries of undistributed assets of the estate, cоntend that even if notice may be taken of the evidence presented in another proceeding, no need has been shown for the removal of the executor.
The evidence of the executor’s malfeasance was taken beforе Judge Grimshaw sitting as a master upon reference by the Supreme Court. It appears that although the hearing was
in camera,
Herr was represented by counsel who cross-examined the witnesses against him. The record in that proceeding is not included in the appendix оn this case, but was before us in our consideration thereof. It appears therein that Judge Grimshaw concluded that “Mr. Herr had for а period of years manipulated Breckwoldt’s assets for his own benefit.” In the removal proceedings, counsel ap
Technically, since the record of the disciplinary hearing was before the Supreme Court, a motion shоuld have been made to have the court remand the record for consideration by the Chancery Division. But the records in both proceedings are now before this court.' The court in the exercise of its original jurisdiction can take judicial notice of the court record in the prior proceeding. See In re Selser, 15 N. J. 393 (1954); cf. Sewell v. Johnson, 165 Cal. 762, 134 P. 704 (Cal. Sup. Ct. 1913); Butler v. Eaton, 141 U. S. 240, 11 S. Ct. 985, 35 L. Ed. 713 (1891) ; North Bergen Township of Hudson County v. Luckenbach Terminals, Inc., 129 N. J. Eq. 387 (Ch. 1941). See also cases cited 9 Wigmore on Evidence (1940), § 2579, n. 2. Since the record is an official document and since the witnesses whose testimony is recorded were subject to cross-examination аt the time they testified, there would seem-to be no substantial hearsay problem. In any event, Judge Grimshaw’s relying on the testimony which he heаrd as master rather than requiring a new hearing of the same testimony before him as judge was not so prejudicial as to constitute a violation of due process.
The Chancery Division has statutory power to remove an executor under
N. J. S. 3A
:11-4 if he has “embezzled, wasted or misapplied any part of the estate committed to his custody, or has abused the trust and confidence repоsed in him”;
(N. J. S.
3A:11-4(c)). See
In re Koretzky’s Estate,
8
N. J.
506 (1951). The duties which Herr violated were due to an
inter vivos
trust and his removal is sought from his position as executor and trustee of a decedent’s estate; but it would seem that malfeasance in the one office is inconsistent'with continuance in the other. See 1
Scott on Trusts
(1939), § 107,
p.
557;
cf. Wylie v. Bushnell,
277
Ill.
484, 115
N. E.
618
(Sup. Ct.
1917) (where the same
The charities which are the sole remaining beneficiaries interested in the distribution of assets of the estate appeal from the order of removal on the ground that there is nothing left tо do but to distribute the remaining assets. The Chancery Division, however, specifically provided that its order should be without prejudice to their right to apply for further distribution.
The order of removal is affirmed.
For affirmance — Chief Justice Vanderbilt, and Justices Burling, Jacobis and Brennan — 4.
For reversal — Justices Heher, Oliphant and Waci-ieneeld — 3.