N.J. Constitutional Convention: Vol. 4, Page 154

Tuesday, July 1, 1947 (Afternoon session)

final justice.

MR. McGRATH: I was wondering if you wouldn't put those in the record?

MR. WATSON: All right, I am going to refer you to another case by Vice-Chancellor Bigelow. It is in 139 N. J. Eq. 588, decided in 1947. I think that case is a concrete illustration. In that case a man died, left a will, left some real estate to trustees, to pay the income to one beneficiary and upon death of that beneficiary to turn the property over to others. There was a life beneficiary, a life tenant and the remainder. Now then, there was a mortgage on the property. The trustee used the income to amortize the mortgage - to pay off the principal of the mortgage. There were three accountings. Everything belonged to the life tenant and was used to reduce the principal. So after this had been approved by three accountings in the Orphans' Court, the life tenant discovered that and tried to undo this apparent wrong. She appealed to the Prerogative Court. Now, then, one of the parties wanted the Prerogative Court to restrain the party who was entitled to the principal after the death of the life tenant, from claiming that these payments that had been made from the income should not be charged against corpus. That called for the construction of the will. Vice-Ordinary Bigelow, in the Prerogative Court, said the court can't do that. It had no jurisdiction to instruct a testamentary trustee. A testamentary trustee always has a right to bring suit in Chancery. You must go to the Court of Chancery for that.

Also, one of the parties wanted the property sold. Vice-Ordinary Bigelow held that the Prerogative Court, as well as the Orphans' Court, lacks jurisdiction. All Vice-Ordinary Bigelow had to do in this case was turn his bench around and he was Vice-Chancellor Bigelow. Can you tell me, members of the Committee, why those parties should have to start over again and go back to Chancery? Why, Vice-Ordinary Bigelow should have moved over to the next bench and said, "Now, I'm Vice-Chancellor Bigelow and I'll decide this case."

These other citations I have here are some of the few that you can find - there are dozens of them in the current cases.

VICE-CHAIRMAN: May we have the citations for the record?

MR. WATSON: Robinson v Hodge, 139 N. J. Eq. 189; Weber v L. G. Trucking Company, 140 N. J. Eq. 96; Independent Taxi Owners Association v Cuthbert, 135 N. J. L. 335. I picked those out of a couple of dozen Advance Sheets of the last six months. Let me hurry along here.

Now, in these matrimonial causes, the 1944 provision was that they should be tried in the law section. The cause is statutory. That was a convenient way. It would provide judicial work that

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