172 A. 907 | N.J. Super. Ct. App. Div. | 1934
Joseph married Isabella in New York in 1907. They lived together as husband and wife until he was killed on the railroad in 1927. Isabella and two grown children survived. Charging the railroad company with responsibility for the death of of the husband and father, Isabella settled for $5,000, and the surrogate of Middlesex county granted letters of general administration to her, that she might make the settlement. Four years later, Rosa Lanza, who resides in Italy, whom Joseph married in Italy in 1902, put in an appearance to claim the fund and petitioned the surrogate to compel Isabella, administratrix, to account. Obedient to a citation, Isabella filed an account in the orphans court charging herself with the $5,000 and praying allowances for funeral expenses, $755.84, for one-third share of the fund paid to her son, who had become of age, and for $870.16 which she had *260 retained as part of her own share, whereupon Rosa Lanza filed exceptions to the discharges except the funeral expenses. The orphans court sustained the exceptions, ordered the account to be amended accordingly, and as amended that it be allowed, "and that there is a balance of $4,244.16 remaining in the hands of the accountant to be disposed of according to law." Subsequently, by a decree which recites that Rosa Lanza presented her petition demanding that the entire estate and personal property of Joseph be paid over to her as his widow and only next of kin, and after testimony taken and argument had, the orphans court "ordered, adjudged and decreed that the said Rosa Lanza Capraro is the lawful widow of Joseph Capraro, deceased, and that the said Rosa Lanza Capraro, as the lawful widow and only next of kin, is entitled to the whole of said estate amounting to the sum of $4,244.16, and that the said Isabella Capraro, administratrix, is hereby ordered and directed to forthwith turn over and pay to the said Rosa Lanza Capraro, or her solicitor, the said sum of $4,244.16." Isabella appeals from the decree of distribution.
The testimony before the orphans court disclosed marriage ceremonies, civil and religious, in Italy in 1902, between Joseph and Rosa Lanza, and that they lived together for a year, when he came to America, to New York, where he later met Isabella. Although they came from the same small town in the old country Isabella claimed not to have known him there, nor Rosa Lanza, and had never heard of the marriage between Joseph and Rosa Lanza. The judge of the orphans court concluded that Rosa Lanza was the lawful wife, and because, as he stated, "the legal presumption arises that a marriage status once formed continues until the contrary is proven," that she is the lawful widow. He seemed not to have considered the primary and stronger presumption of the legality of the marriage between Joseph and Isabella, arising from their ceremonial marriage, the family and their matrimonial relations for twenty years; nor the burden on Rosa Lanza to overthrow this presumption by proof of the validity of the prior marriage, and also by evidence negativing *261
every reasonable possibility of its invalidity as well as every reasonable possibility that it did not subsist at the time of the second marriage. Sparks v. Ross,
The fund recovered under the Death act is no part of the decedent's estate. It is held by the administrator in trust for the exclusive benefit of the widow, surviving husband and next of kin of the decedent, to be apportioned among them as they would take of the decedent's estate under the statute of distribution.Gottlieb v. North Jersey Street Railway Co.,
In stating the account for allowance and approval, the court, of course, correctly sustained the exceptions to the allowances sought by the accountant for the share paid to the son and the part appropriated by the widow, for distribution of the fund under the statute formed no part of the accounting. The only proper items of an administrator's account are the assets of and the outlays for the estate; it is upon these that the balance is struck and charged against the administrator. Weyman v.Thompson,
Jurisdiction to order distribution is a judicial function separate and distinct from the supervisory powers over administrators' accounts. Distribution is not made by any authority or power inherent in the orphans court. In re Estateof James Eakin,
When the orphans court was created by the act of December *263 16th, 1784 (Pat. Laws 59), and powers of the ordinaries were divided with that court, it was authorized to hear and determine all controversies respecting the existence of wills, the fairness of inventories, the right of administration and guardianship and the allowance of accounts of administrators, executors, guardians and trustees, practically in the same language as section 2 of the present Orphans Court act (Comp. Stat. p. 3813), but no power of distribution was granted. That came eleven years later in an act passed March 2d 1795 (Pat. Laws 153), and was confined to distribution of intestates' estates.
Though the orphans court originally was given jurisdiction over executors and their accounts, it required an enabling act in 1872, now section 173 of the Orphans Court act, to vest it with power to order distribution of estates of testators.
In Ordinary v. Smith's Ex'rs,
In Ordinary v. Barcalow, supra, Chief-Justice Beasley held that an executor must settle his account in the orphans court, and failure to do so was a breach of his bond, notwithstanding, and he held, that the orphans court had not the power to decree distribution. That was before the act of 1872 conferring the right.
In Exton v. Zule,
The orphans court, a tribunal of general jurisdiction with powers limited to matters committed to it by the statute (Den,ex dem. Obert v. Hammel,
We have here the anomalous situation of a fund representing the loss to Isabella and her children, claimed by Rosa Lanza whose damages, if any, could not have been contemplated in the settlement, and who delayed her notice of claim until long after the administratrix paid out part of the fund, as she was in duty bound under the statute. It may be chancery can adjust the equities.
The decree of the orphans court to distribute the funds is set aside. *265