N.J. Constitutional Convention: Vol. 4, Page 248

Thursday, July 3, 1947 (Afternoon session)

MR. GILHOOLY: Yes, for the simple reason that if you do that and if you give the power to the Legislature - number one, you will not have a constitutionally created court, and number two, you will run the danger of having important equity decisions arrived at by law judges, and vice versa.

MR. BROGAN: Well, if they're wrong they can be corrected.

MR. GILHOOLY: Why rely on the appellate court to correct something than can be avoided in the first instance?

MR. BROGAN: Well, in most instances a decided case has one disappointed party, and that disappointed party thinks he ought to appeal, doesn't he?

MR. GILHOOLY: That brings me to the last point I'm going to make, Justice Brogan -

MR. BROGAN: I was thinking of a specific case. Suppose that X makes a will and leaves your client a particular legacy - let us say, an altar cloth or something that he couldn't buy. And suppose that the executor files an account, and your client doesn't get the specific gift and you except to the account. The matter comes up before the Orphans' Court and Y, who is a stranger, says, "Why, the testatrix gave me that before she died." And you have reason to believe that that's untrue. You contest that. The Orphans' Court is perfectly powerless in the premises, and you have to go into Chancery to have a specific legacy and the right thereto determined, since an Orphans' Court can't decide a disputed question of title to anything. Now, shouldn't something be done?

MR. GILHOOLY: If I might be permitted to make a suggestion - I think if I were representing the litigant I might seriously consider bringing an action of replevin by the party to whom this was bequeathed under the will.

MR. BROGAN: You are assuming a situation which I didn't state. Assume that this person doesn't know a thing about this until the accounting comes up, an intermediate accounting before an Orphans' Court, and then for the first time he finds out that there's an adverse claim. The court has the whole thing before it. Don't you think it ought to follow through and decide the whole question?

MR. GILHOOLY: Well, I think the Legislature could extend the powers of the Orphans' Court.

The last point I want to make is this. Some years ago I had a talk with Vice-Chancellor Backes, who was a very eminent Vice-Chancellor and very learned in equity jurisprudence. He said, if there's one criticism that can be leveled against the Court of Errors and Appeals, it is this: that the Governors do not see fit, in the selection of members of that court, to always see to it that an equity judge is represented on that court. And I seriously urge for your

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