In re the estate of Norell

Case, Ciiiee-Jestice.

(Dissenting.)

It is my understanding that the time within which Herman Harding might take, and the Hudson County Orphans Court might entertain, an appeal from the decree of probate by the surrogate of Hudson Comity depends entirely upon the statute (R. S. 3:2-52) set forth in the majority opinion. Crawford v. Lees, 85 N. J. Eq. 324, 340; In re Whitehead’s Estate, 85 N. J. Eq. 114; affirmed, sub nom. In re Whitehead’s Will, 86 N. J. Eq. 439; Mellor v. Kaighn, 89 N. J. Law 543, 547. The statute clearly provides that the period of appeal is three months except where the person appealing resides out of this state at the death of the testator when it shall be six months. The petition of appeal says nothing about the residence of the appellant except that he resided at 375 West 126th Street, New York City, at the time the petition was prepared — presumably at or just prior to the date of filing, Hovember 8th, 1944. The probate by the surrogate was May 26th, 1944. The period for appeal, generally, had elapsed. Ho appeal could be taken on Hovember 8th, 1944, unless the potential appellant was a person who had resided out of this^state on May 26th, 1944. What .the petition alleged as to residence was, on this issue, as though it had said nothing. We have, therefore, one who comes in under the circumstances of a general appeal, after the period of general appeal has long since gone. Hot only so, but the entire record, thence forward, is searched in vain for any allegation, either under oath or otherwise, that the appellant had been a non-resident at the crucial time. Further, there has been no application on his behalf to amend or supplement the record in any respect so as to show either the fact, or an allegation, of such non- *556 residence; therefore, such powers of amendment as the court could have exercised, but did not and was not called upon to exercise, are not in point. So far as the record discloses Harding does not come within the special classification to which, alone, the statute gives the right to appeal after the lapse of three months. The situation is the same as would exist if the statute provided that an appeal by a party otherwise privileged as by one non compos, or under age, might be taken within an extended period. The facts which would bring such a party within the excepted class would need to be averred in the petition of appeal and established by the party seeking to benefit thereby. Cf. 4 C. J. S., Appeal and Error, § 449.

I am of the opinion that the burden was upon Harding to bring himself, if he could, within the statutory exception. It is wholfy illogical to relieve an appellant from asserting and establishing existence of a fact upon which he depends for making his a special case, and to place the burden of raising an issue upon respondents who may know nothing of that fact or even of appellant’s existence. This is entirely independent of the manner of taking an appeal, viz., whether by petition of appeal or otherwise. An appellant must, by some showing in writing, whatever the paper be called, manifest the act of appeal; and whatever else that writing may, by statute, rule or practice, be made to contain, it should, I conceive, when dependent for validity upon the existence of some special fact, recite the existence of that fact. As the case stands, Harding, the original appellant from probate, prevails and, so far as we know, the statutory requisite for the entertaining of his appeal does not exist.

Upon that ground, alone, I vote to affirm the decree of the Prerogative Court.

For affirmance — The Chief-Justice, Donges, JJ. 2.

For reversal — Parker, Bodine, Heher, Perskie, Colie, Wachenfeld, Eastwood, Wells, Rafferty, Dill, Freund, McGeeiian, McLean, JJ. 13.