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Our conclusion therefore is that the by- | The facts of the case are these: On Jan. law requiring advertisement of this ordinance uary 13, 1908, Patrick Degnan presented a between first and second readings was dis- verified petition to the surrogate of the coun. regarded, and was not and could not be sus-ty of Hudson, in which he showed that he pended by the action that was taken, and was a brother of Nellie Moran, who departed that the ordinance was in consequence not this life intestate September 19, 1907; that legally passed, and for that reason must be she left her surviving her husband, John set aside.

Moran, and the petitioner, and no other reThis conclusion renders it unnecessary to latives; that John Moran died December 22, discuss the other reasons advanced.

1907; that he never took out letters of ad.
ministration on the estate of his wife, and

never reduced her property into his posses.
(75 N. J. E. 197)

sion; that the only property of which she (Prerogative Court of New Jersey. Dec. 7, tal stock of the People's Building & Loan As

died possessed was five shares of the capi. 1908.) 1. EXECUTORS AND ADMINISTRATORS (8 17*)– sociation of the town of Harrison, which GRANT OF LETTERS-PERSONS ENTITLED. were of the value of $800 as nearly as he

The husband of a married woman dying in- could ascertain, and therefore he applied for testate is entitled to administration upon ber administration of her estate. On January estate, but then the grant of letters 'must be to her next 29, 1908, the Rev. Thomas A. Conroy preof kin, unless there be some personally disquali- sented a verified petition to the surrogate of fying objection to the applicant, and the pro the county of Hudson, in which he showed bate court has no discretion in the matter, and that Nellie Moran departed this life intescannot ignore the claims of the persons wen. tioned; their right to administer in the re- tate, as set forth in her brother's petition, spective cases being paramount.

and left her surviving John Moran, her bus(Ed. Note.-For other cases, see Executors band, who died December 22, 1907, and that and Administrators, Cent. Dig. $$ 44, 45; Dec. be, the petitioner, was the executor of the Dig. $ 17.*] 2. DESCENT DISTRIBUTION (8 52*) –

last will and testament of John Moran, apCHOSES IN ACTION-RIGHT OF ADMINISTRA-pointed as such on January 8, 1908; tbat the

intestate (Nellie Moran) was possessed of Choses in action, left by a wife dying in personal property to the value of $800 as testate, pass to her administrator, who may be her husband, but, if another shall administer, nearly as he could ascertain, and therefore such administrator will hold her choses in ac' he applied for letters of administration of tion, as well as her personalty in specie, after her estate. On February 5, 1908, a citation the payment of her debts, in trust for the benefit of her husband if he be living, or for his rep

was issued out of the Hudson county or. resentative if he be dead; the rule being that phans' court, directed to the Rev. Thomas the right of the husband to the personal prop- A. Conroy and Patrick Degnan, command. erty left by the wife upon her death intestate ing them to appear before that court on Feb. does not depend upon his conversion or reduction of the same to his own use or possession ruary 21st, then instant, to answer unto the after her death.

applications for letters of administration [Ed. Note.-For other cases, see Descent and on the estate of Nellie Moran, deceased. This Distribution, Cent. Dig. 88 135–171; Dec. Dig. process was not in proper form. It required $ 52.*)

each applicant to answer to his own, as well (Syllabus by the Court.)

as his rival claimant's, petition for adminis. Appeal from Orphans' Court, Hudson tration. It should have recited that, a disCounty.

pute having arisen as to the right of adminApplication of Patrick Degnan for letters istration upon the estate of Nellie Moran, de of administration on the estate of Nellie ceased, the parties were cited and warned to Moran, deceased. From an order granting

appear before the Hudson county orphans' letters, and ordering certain assets paid to court on the date named, at which time and the administrator, Patrick Degnan appeals. place the court would hear and determine

the matter in controversy. See Kocher's Reversed.

Orph. Ct. Pr. p. 451, form 183. However, Edward Kenny, for appellant. Joseph M. this is merely formal, and no objection was Branegan, for respondent.

made on this score in the court below, nor is

it urged here, nor could it very well be made WALKER, Vice Ordinary. This is an ap- the subject of objection. On April 24, 1908, peal from an order of the Hudson county a memorandum was filed in the Hudson orphans' court, made on June 12, 1908, in county orphans' court by Judge Blair as which it was decreed that the title and in- follows: "Administration will be given to terest in certain shares of a building and the next of kin of Nellie Moran. Patrick loan association are part of the assets of the Degnan." On June 12, 1908, the order apestate of John Moran, deceased, and that the pealed from was entered. It entirely ignores association shall pay, or cause to be paid, or (while setting aside) the memorandum of credit the sum due upon them, to the execu- April 24, 1908. The order is in the following tors of the estate of the late John Moran. I words and figures: “Application being made

for letters of administration on the estate, Moran, the amount or value of those shares. of Nellie Moran, deceased, and it appearing It is to be observed that each of the parties that Nellie Moran died September 18, 1907, before the orphans' court of the county of leaving her surviving her husband, John Hudson prayed for a grant of administraMoran, who died December 25, 1907, leav- tion upon the estate of Nellie Moran, deing a will, which was admitted to probate by ceased. The orphans' court act, Revision the Hudson county surrogate on the 8th day of 1898 (P. L. p. 724, § 27), provides that, if of January, 1908, and it appearing that El any person die intestate, administration of len Moran was the holder of passbook No. the goods, chattels, and credits of such in6660 in the People's Building & Loan Asso- testate shall be admitted or granted to the ciation of Harrison, and that after her death, widow or the next of kin of such intestate, until the death of John Moran, he had paid or to some one of them, if they, or any of the premiums on the said shares, and then them, will accept the same; and, if none of [thus] indicated a determination to reduce them will accept thereof, then to such other same to his possession. It is on this 12th proper person, or persons, as will accept the day of June, 1908, ordered and decreed that same. In Donnington v. Mitchell, 2 N. J. the said right, title, and interest in the build- Eq. 243, 247, it was held that the husband is ing and loan shares, as evidenced by pass entitled to administration because he is enbook No. 6660 is part of the assets of the titled to the wife's estate, not as her next estaté of John Moran, deceased, and that the of kin, for he is not, strictly speaking, of building and loan association upon the pres- kin to his wife at all. See, also, Diek. Pro. entation of a certified copy of this order Ct. Pr. pp. 38, 39. Kocher's Orph. Ct. Pr. p. shall pay or cause to be paid or credit with 61. This was so under the probate practice "he sum now due to the executor of the es- of England, and is expressly recognized by tate of John Moran." Returned with the our orpbans' court act. P. L. 1898, p. 780, transcript from the orphans' court in this $ 170. In Fielder v. Hanger, 3 Hagg. Ecc. matter is an agreed state of facts which Rep. 770, the Prerogative Court of Canterreads as follows: "Nellie Degnan Moran was bury granted administration de bonis non married to John Moran September 18, 1887, of a feme covert to the representative of the died on September 19, 1907. She had in her husband, who had taken out administration, own name five shares of the People's Build- and died without fully administering, and ing & Loan Association of Harrison, N. J., remarked that the same grant would have which were issued to her September 19, 1889. been made if the husband had not taken Those shares are now worth the sum of out administration, unless it could be shown $616.40, of which $500 is the amount paid that he had not the interest, but that the for them, and the balance is the accrued in property belonged to the wife's next of kin. terest, viz., $116.40. Her husband, John, This practice appears never to have obtaindied December 22, 1907. He never applied ed with us, although the rule that a residufor, nor took out, letters of administration ary legatee will be appointed in preference on the estate of his wife. He never reduced to the next of kin has so obtained, notwithher chose in action to possession. She left standing the statute. In re Will of Kirkpather surviving at the time of her death no rick, 22 N. J. Eq. 463, 466; Booraem's Case, children, no father nor mother, no brother nor 55 N. J. Eq. 759, 37 Atl. 727. sister, except her brother Patrick Degnan, The right of the husband to administration of East Newark, N. J., and she left surviving of his wife's estate first arose under the her no child of any deceased brother or sis statute of 31 Edw. III, c. 11, “as the next ter. There were no children born of her and most lawful friend” of the deceased, marriage with John Moran. During the which right, as well as the right to the proptime of her marriage she worked at dress- erty, the husband has under the statute of making, and earned considerable money in 29 Car. II, c. 3, s. 25, notwithstanding the that occupation.” The day after the making statute of distributions, 22 & 23 Car. II, c. of the order above recited by the Hudson 10. This whole subject is ably and intercounty orphans' court, Patrick Degnan, the estingly reviewed in 2 Hagg. Ecc. Rep., Apbrother and next of kin of Nellie Moran, de- pendix p. 170, in a note by the reporter, but ceased, appealed therefrom to this court, and a discussion of the English practice is here prayed that the order of the orphans' court unnecessary, because our statute is entirely might be set aside, and that letters of ad- controlling. ministration upon the estate of the decedent As already remarked, our orphans' court might be ordered to be granted to him, and act gives the husband the right to adminisfor further or other relief.

ter, and in the absence of a surviving husThe order appealed from is erroneous in band, administration must be granted to the two particulars: First, because it makes no next of kin whose right is paramount ungrant of administration upon the estate of less there be some personally disqualifying Nellie Moran, deceased; and, second, be objection to the applicant. Donahay v. Hali,. cause the orphans' court was without pow. 45 N. ) Eq. 720, 722, 18 Atl. 163; Cramer er to adjudicate as to the ownership of the v. Sharp, 49 N. J. Eq. 558, 24 Atl. 962. building and loan shares and order paid or where there is no husband nor widow, adminkin, if any of them are fit and competents agreed state of facts, which says that he did and will accept. Sayre v. Sayre, 48 N. J. not do so. In Stoutenburgh v. Hopkins, 43 Eq. 267, 22 Atl. 198. Upon application to N. J. Eq. 577, 12 Atl. 689, Chancellor McGill, the surrogate of Hudson county for admin-as ordinary, said in the Prerogative Court, istration upon the estate of Nellie Moran, at page 580 of 43 N. J. Eq., at page 690 of which was the question before the Hudson 12 Atl. (speaking to the question of the validicounty orphans' court, the only order which ty of a will), that if the will shall not be escould have been properly made was one tablished, the husband will be entitled jure granting administration to the next of kin mariti to the wife's entire personal estate, of Nellie Moran, namely, her brother, Pat-citing Donnington V. Mitchell, 2 N. J. Eq. rick Degnan, the appellant, and that should 243. This case was affirmed in Stoutenhave been the order of the court. The ad- burgh v. Hopkins, 45 N. J. Eq. 890, 19 Atl. ministrator, however, when appointed will. 622, on the opinion of the ordinary in the be considered in equity with the respect | Prerogative Court. In Folwell's Case in the to the residue of the estate, after payment | Prerogative Court, 67 N. J. Eq. 570, 59 Atl. of debts, as trustee, for the husband's rep- 467, Chancellor Magie, as ordinary, at page resentative. This was expressly decided | 572 of 67 N. J. Eq., at page 468 of 59 Atl. in Donnington v. Mitchell, ubi supra, upon remarked that, if Mrs. Folwell had died inthe authority of several cases cited in 2 N. testate, her husband would have been entitled J. E. at page 247, and the same doctrine to all her personal property, the jus mariti has been held to in this state ever since. In in this respect having been recognized and Nelson v. Nelson, 57 N. J. Eq. 118, 36 Atl. preserved by section 170, Orphans' Court Act 280, the wife devised and bequeathed all of (P. L. 1898, p. 780). This case was reversed her real and personal estate to her husband, (see Folwell's Case, 67 N. J. Eq. 728, 63 Atl. and, after his death, with remainder in cer- 1118), but upon the sole question whether or tain realty to certain persons, and she, there- not the last will and testament of Mrs. Folfore, died intestate as to the remainder of well bequeathed her personal estate to her her personalty. In a contest over the same daughter absolutely, and it remains an aubetween the next of kin of both husband and thority for the view which I take, to the full wife, Vice Chancellor Emery held, at page extent. · In Wright v. Leupp, 70 N. J. Eq. 122 of 57 N. J. Eq., at page 281 of 36 Atl. 130, 62 Atl. 464, Vice Chancellor Pitney rethat the right of the husband to the wife's marked, at page 133 of 70 N. J. Eq., at page personal property undisposed of by her will | 465 of 62 Atl., that by the common law which does not depend upon his actual conversion prevails in New Jersey the husband is not of her estate after her death to his own use; only entitled to administration of his wife's and, so far as the same has not been admin- estate lying in this state, but, whoever may istered or converted by him, the administra- administer it, he is entitled to her whole net tor de bonis non of the wife's estate will personalty. Hence any fund which might hold the estate in trust to pay over to the come to the hands of the complainant's adhusband's administrator after paying the ministrator must, after paying her debts, go debts of the wife's estate.

to the husband. It is to be observed that the Hudson or- Counsel for the appellant contends that, phans' court in the order appealed from ad- | because Mr. Moran did not reduce his wife's judged that the deceased husband had done choses in action into possession during his certain acts which indicated a determination lifetime, the beneficial interest in those to reduce to his possession the choses in ac- choses has passed to the next of kin of his de tion (for such they were) which were left by ceased wife; but this position, as already his deceased wife. It was not necessary for shown, is not tenable. Counsel relies upon John Moran to have reduced these choses in- Bacon v. Devinney, 55 N. J. Eq. 449, 37 Atl. to possession to entitle his estate to the 144, in which it was held that, when a husbeneficial interest in them, nor does such bene- band and wife both make payments to meet ficial interest give his personal representative the dues of building association stock standthe right to administer upon the estate of ing in the name of the wife, the presumpNellie Moran as against her next of kin, tion is that his payments were gifts to her. much less does it afford the orphans' court Even so, there is nothing in this view which any power to make an order that the People's militates against the husband's right to have Building & Loan Association of Harrison his wife's personal property after her death, should pay, or cause to be paid, to John and in fact in that case Vice Chancellor Grey Moran's executor the sum due upon the held, at page 454 of 55 N. J. Eq., at page 146 shares of which Nellie Moran died possessed. of 37 Atl., that the husband had a right to The building association was not before the the ownership of the stock, subject to the orphans' court, and the decree as to it was pledge made of it for the debt of the wife clearly coram non judice. Besides, I cannot created in her lifetime. This is but a reafunderstand how the Hudson county orphans' | firmance of the doctrine that the wife's percourt could have found that the husband sonal property is subject to her debts, and had reduced the choses into possession be- her surviving husband takes only the net fore he died, which is practically what was surplusage of her personalty, and this, too, N. J. Eq., at page 456, 37 Atl., at page 146. 2. HOMICIDE (§ 340*)—WRIT OF ERROR_HARMOn behalf of the appellant reliance is also

LESS ERROR-INSTRUCTIONS. placed upon Vreeland v. Ryno, 26 N. J. Eq. “murder in the second degree is devoid of the

Although the statement in a charge that 160, in which Chancellor Runyon said, at element of the intention to kill” is erroneous, it page 162 of 26 N. J. Eq., referring to the is not an error that should lead to reversal, if common law, that the husband had an inter- its legal effect, in view of other parts of the est in the choses in action of the wife, which charge, was injurious only to the state.

[Ed. Note. For other cases, see Homicide, he could reduce to possession, and when so Cent. Dig. $ 717; Dec. Dig. 8 340.*] reduced, they became his absolutely, and on 3. HOMICIDE ($$ 116, 340*)-SELF-DEFENSE, his death went to his representatives, but WRIT OF ERROR — HARMLESS ERROR - INthat such of them as had not been reduced to

STRUCTIONS. possession by him at his death still remained protect himself even to the extent of taking

The victim of an unprovoked assault may hers, and at her death went to her repre- the life of his assailant, when that act is or sentatives, and not to his. But this case is in reasonably appears to him to be necessary in entire harmony with the cases in this state order to preserve his own life, or to save his

body from serious harm. Hence a judicial which hold that the beneficial interest in charge that limits such right to what is necesthe deceased wife's property pass to the hus- sary, and thereby deprives the defendant of the band's representative after his death. In right to have his act tested by the reasonablethat case, and in Compton v. Pierson, 28 N. sity, is erroneous; but such error is not in

ness of his belief in the existence of such necesJ. Eq. 229, 232, Chancellor Runyon simply jurious to the defendant when his sole defense adverted to the common-law rule that the is that an unprovoked and murderous assault choses in action of the wife,' not reduced into was made upon him, and there are no grounds possession by the husband in his lifetime, the defendant's belief apart from the grounds

or circumstances going to the reasonableness of went to her representatives at her death, and circumstances that go to prove the actual and not to his, and this where the wife sur

existence of the danger and necessity that convived the husband, and in both cases he re

fronted him, if his testimony be believed. ferred to the fact that, after the death of the Cent. Dig. $8 158-163, 715, 716; Dec. Dig. 38

(Ed. Note.-For other cases, see Homicide. wife, the husband, as her administrator, 116, 340.*] might reduce her choses in action into his (Syllabus by the Court.) possession and hold them jure mariti. It must be conceded that choses in action be

Error to Court of Oyer and Terminer, longing to the wife pass at her death to her Hudson County. representative. That representative may be

Sabino Mellillo was convicted of murder in

At. the husband, if he survives her; and, if he the first degree, and he brings error. fails to take out administration, her adminis

firmed. trator, after the payment of her debts, holds Joseph B. Noonan, for plaintiff in error. her personalty in trust for her husband if Pierre P. Garven, for the State. he be living, or for his representative if he be dead. There is no conflict between the

GARRISON, J. The plaintiff in error was cases. They are all in harmony and in entire convicted in the Hudson county court of oyer accord.

and terminer of murder in the first degree. The result is that the decree of the Hud- The judgment now brought up by this writ son county orphans' court must be reversed, of error is attacked upon three grounds, all and the record remitted to that court, with of which relate to the charge of the trial instruction to grant administration on the court. estate of the late Nellie Moran to the appel

The first ground of error assigned is that lant, who is her only surviving brother and the jury was instructed that “murder in the next of kin.

first degree is where death results from a deliberate, willful purpose to take life, a de

liberate intention preconceived beforehand (77 N. J. L. 505)

to kill, and that intention executed and carSTATE v. MELLILLO.

ried out." (Court of Errors and Appeals of New Jersey. tion of murder in the first degree from which

The charge of the trial court upon the quesNov. 27, 1908.)

the foregoing is excerpted was as follows: 1. HOMICIDE ($ 340*)—WRIT OF ERBOB-HARM- "The statute concerning murder in this state LESS ERROR-INSTRUCTIONS.

Although the notion expressed by “precon- which is applicable to this inquiry reads as ceived" is not so exactly the equivalent of "pre- follows: meditated" as to render the former a satisfac

• Murder which shall be perpetrated by tory substitute for the latter in a definition of the statutory crime of murder in the first de

means of poisoning or lying in wait or by gree, the context in which it occurs in a given any other kind of willful, deliberate and precase may be such that the employment of “pre- meditated killing shall be murder in the first conceived" for "premeditated" in a charge to the jury, although not to he approved, is not degree, and all other kinds of murder shall an error by which the defendant was injured.

be murder in the second degree; and the [Ed. Note.-For other cases, see Homicide, jury before whom any person indicted for Cent. Dig. $ 715; Dec. Dig. $ 340.*]

murder shall be tried, shall, if they find such person guilty, so designate by their verdict which they had just before and so repeatedwhether it be murder in the first degree or ly been told was a requisite element of the murder in the second degree.'

statutory crime of murder in the first degree, "You will, therefore, observe that, in order namely, “premeditation." While, therefore, to constitute murder in the first degree, the we find in this assignment some ground for killing must be done willfully, with deliber- verbal criticism, we find none for reversal. ation and with premeditation. The statute The second assignment challenges the acsays the killing must be willful, deliberate, curacy of the statement of the charge that and premeditated to constitute murder in the “murder in the second degree is devoid of the first degree, but the statute does not say that element of the intention to kill.” That this such willfulness, such deliberation, and such statement is erroneous is apparent from the premeditation shall have existed for any fixed consideration that the statute touching the length of time before the act; and there degrees of murder after specifying the atfore all the jury need be satisfied of in order tributes constituting murder in the first de to return a verdict of murder in the first de gree relegates all other kinds of murder to gree is that the killing was willful, that it the second degree of that crime. Hence, inwas deliberate, and that it was premeditated, asmuch as murder perpetrated with an inand that such were the conditions of the tention to kill that was not deliberate and mind of the accused for a time sufficiently premeditated is a kind of murder, and yet long before the act of killing to allow him to is not murder in the first degree, it follows have fully and clearly conceived the design necessarily from the statutory category that to kill, and that he did conceive such design, it must be murder in the second degree. This and then premeditately and deliberately and has already been sufficiently pointed out in willfully carry out that design. It must con- this court in the cases of State v. Bonofiglio, sist of time sufficiently long for him to have 67 N. J. Law, 239, 52 Atl. 712, 54 Atl. 99, 91 formed the design to kill or not to kill and Am. St. Rep. 423, and State v. Deliso (N. J.) to make a choice whether he would kill or 69 Atl. 218. not kill, and, having deliberately determined In the present case, however, in view of to kill, to have executed that purpose. That other parts of the charge, the effect of this satisfies the statute.

judicial error was injurious only to the state; “The law, as I have read to you, states for the jury had been told that only verthat you shall return by your verdict, if dict it would be justified in finding against you find the defendant guilty of murder, the defendant was that of murder in the first whether it shall be murder of the first degree | degree or in the second degree. They had or murder of the second degree.

also been told that, unless they found a kill"Murder in the first degree is where death ing that was deliberate and premeditated, results from a deliberate, willful purpose to they could not convict the defendant of murtake life; a deliberate intention preconceived der in the first degree. When therefore, they beforehand to kill, and that intention exe- were further told that murder in the second cuted and carried out."

degree was devoid of the element of the inFrom this judicial exposition, which is tention to kill, they were in effect told that not otherwise excepted to, the concluding it would be their duty to acquit the defendca use, or rather the word "preconceived,” is ant unless his criminal act of killing in adsingled out, and made the basis of the argu- dition to being intentional was also deliberment that the notion expressed by "precon- ate and premeditated. This, of course, was ceived” is not the exact equivalent of “pre- too favorable to the defendant, but, the jury meditated” which is the word used in our having found that the defendant's act was statute defining murder in the first degree. deliberate and premeditated, neither the state

Whether this is so or not, or whether the nor the defendant were injured by the erroclause in question standing apart from its neous statement of the law. context would be in all respects a satisfac- The third and last assignment of error to tory definition of murder in the first degree, be considered relates to the charge of the need not now be decided. It may be that, court touching the law of self-defense. What inasmuch as premeditation as a mental pro- the court said was this: cess covers a less extensive field than that “Every man has a right to defend himself covered by “preconception," the broader term when he is attacked. He has a right to do would not in an isolated definition of mur- fend himself to any extent that is necessary der in the first degree be a satisfactory sub- to protect his person and his life. If a perstitute for the narrower one used in the stat- son who is attacked has reasonable grounds ute. That, however, is not the case here. for believing that his life is in danger or his Six times in the single paragraph quoted body is in great danger of being harmed, he from the charge the jury had been told that has a right to defend himself to any extent premeditation was an indispensable element that is necessary, even in some cases to takof murder in the first degree. When, there ing life, but there must be some reasonable fore, referring to what had just gone before, ground for his belief, and, if he pursues this the broader term “preconceived" was employ- defense, defending himself beyond what is ed, the jury must have understood that what necessary to protect himself, then he loses

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