Pitsch v. Hopper

194 A. 147, 15 N.J. Misc. 662, 1937 N.J. Sup. Ct. LEXIS 102

Opinion

Per Curiam.

This is on motion to vacate the allocatur of a writ of certiorari applied for and allowed April 1st, 1937, to review a surrogate’s order of probate made August 1st, 1935. The statutory limitation to review a court order by writ of certiorari is eighteen months. 1 Comp. Stat., p. 403, § 3. This court recognizes that limitation to the extent that it is reasonable in a given case. Red Oaks, Inc., v. Dorez, Inc., 117 N. J. L. 280; 187 Atl. Rep. 737. The period of eighteen months from probate expired on February 1st, 1937. We are satisfied that with reasonable expedition a writ to review the probate could have been sought well within the statutory period.

Prosecutor would raise the question of jurisdiction of the surrogate to probate, alleging that there were doubts on the face of the instrument and that thereupon it became the duty of the surrogate, section 13 of the Orphans Court act (3 Comp. Stat., p. 3816, as amended, chapter 370, Pamph. L. 1931; N. J. Slat. Annual 1931, § 146-13), to cite the parties to the Orphans Court — there to try the issue. But the Court of Errors and Appeals has already considered this will (Christian Orphan Home v. Guaranty Trust Co., 121 N. J. Eq. 257; 190 Atl. Rep. 103) and determined the question of doubt arising on the face of the instrument contrary to prosecutor’s contention.

The motion to vacate will be granted, with costs.