55 N.J. Eq. 232 | New York Court of Chancery | 1897
The principal'- reliance of the. defendant was upon the first point, to wit, that .the matters have already been passed upon by the orphans court of the county, of Morris in the clause contained in the decree;
This point is without the least strength. The direction of the court to distribute the money according to the terms of the will is the ordinary addenda to a decree allowing accounts, in use by the orphans court of the county of Morris for many years, and does not approach in any degree a decree construing the will. The question still remains, Who is entitled to it under the will of Mr. Miller?
It was further argued, however, that the complainant, having once gone into the orphans court to submit his account, should have procured a construing decree from that court, which has full jurisdiction of the subject under the one hundred and fifty-first section of the Orphans Court act (Gen. Stat. p. 2391), which section had its origin in 1872. P. L. of 1872 p. 47. The complete answer to that point is found in the case of Adams v. Adams, 1 Dick. Ch. Rep. 298, decided by the court of errors and appeals. It was there held that the orphans court had no authority to make any such decree except upon special proceedings instituted upon the application of some party in interest, and bringing every one of the parties interested into court; that a general publication of an intention to settle an account was not such notice. The bill is silent as to whether any such application has been made in this case or not; but, following the maxim quod non apparel non est, it must be presumed that no such application has been made.
That this court has jurisdiction of such a suit is too plain for argument, and the machinery of this court for obtaining'jurisdiction of all the parties and doing complete justice among them is at least equal, if not superior, in efficiency and cheapness to that of the. orphans court.
It only remains to inquire whether or not there really is any serious question, arising upon the face of the will to warrant the complainant in'seeking the aid of this court. Without express
The demurrer must be overruled, with costs, with leave to answer in twenty days.
