49 N.J. Eq. 264 | N.J. Super. Ct. App. Div. | 1892
The single question presented upon this appeal is whether an orphans court, upon a direct application to it, can set aside a surrogate’s probate after the time limited by statute for appeal to it has expired.
The surrogate’s probate was a judicial act, and, as such, is conclusive until it shall be vacated, either through appeal or by proceedings in direct attack upon it. Quidort’s Admr. v. Pergeaux, 3 C. E. Gr. 472, 477; Ryno’s Exr. v. Ryno’s Admr., 12 C. E. Gr. 522. It is urged that this application to the orphans court
I do not think that this is a correct exposition of the meaning •of our law.
The orphans court has general jurisdiction over subjects pre- ; scribed by the statutes of which it is the creature (Den. v. Hammel, 3 Harr. 73; Pyatt v. Pyatt, 1 Dick. Ch. Rep. 285); but control of judgments of the surrogate is not one of those subjects except it be accomplished through review upon appeal. When the time within which appeal may be taken has elapsed, the judgment is a finality until it be disturbed by a direct attack upon it, which should originate before the surrogate. In re Evans, 2 Stew. Eq. 571, 574. Any other construction than this would render that provision of the statute which limits the time within which an appeal must be taken, meaningless; for, if at any time application might be made to the orphans court to set the surrogate’s probate aside because of fraud or undue influence upon the testator, what use would there be for appeal ? Such an application would effectuate all the purposes of an appeal.
There are two methods of obtaining probate known to the practice of the English ecclesiastical courts — one in common form, and the other in solemn form or per testes. The proof is -said to be in common form when the executor presents the will for probate in absence of the parties in interest (to be affected by fhe probate), and, without citing them, proceeds ex parte with his proof, and it is said' to be in solemn form when those in interest are cited to be present at the probation or approbation of the will. When a will is proved in common form, the court, at any time within thirty years' after probate, may require the executor, of its own motion or at the instance of the next of kin or other person interested, to prove the will in solemn form. 1 Wms. Exrs. 334 et seq.; Waters v. Stickney, 12 Allen 4. This practice is not a hardship upon the executor, for it is within his power, and a dictate of ordinary prudence, in the first instance, if there ibe doubt as to the propriety or security of probate in common