# Petition — Connor v. Warren

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1981
- **Citation:** 449 U.S. 1079

## Text

8 0 x 6 4 (Supreme court, U.S.

FILED
No .
OCT 15 1980
MICHAEL RODAK, JR., CLERK }
IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1980

JOHN R. CONNOR, Petitioner,
Ve
GEORGE WARREN, Administrator,

Estate of Mary A. Connor,
Deceased, et al.

PETITION FOR A WRIT OF CERTIORARI TO THE
SUPREME COURT OF NEW JERSEY

John R. Connor, Pro se
380 Wyoming Avenue
Millburn, New Jersey
(201) 762-5587

TABLE OF CONTENTS

Questions presented Sé5 (1S La}— 3 ra
Trinity Episcopal Corp. v. Romney,
F. Supp. 1044, 10 De. Ge
N. Ze GENESEE RES Sve ay 37
Washington Nat. Ins. Co. v. Board
of Review of N. J. Unemployment
egapensat ton Commission, Be Je
td A.2a 443 She SSR 25

Wilson v. City of Lon Branch, 27
N. J. 300, 142 A 34 837, cert.

denied 358 U. S. 873 (1958)—~..... 34

iv

Page

Constitution, statutes and court rules:

United States Constitution:

Fourteenth Amendment.....3,14,18,24,27

New Jersey Statutes:

N.J.S.A. Y Tk See eee

a

ott cabeie

3A: 6—4....
New Jersey Rules:

BRABUS 646% be€ecee

WAG i pacscvisduenandscsncws

4:84-l(b)...

11,20

cocccce ee 3,9,19,21,

4:99-1(b)..

23,26

-4,9,19,20,

Miscellaneous:

21,26

33 C. J. S. Executors and Administra-

8 N. J. Practice, , Wills and

24,31

5385 Cae POP a cawas 00

Administration §

IN THE
SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1980

No.

In the matter of

THE ESTATE
OF

MARY A. CONNOR, DECEASED.

PETITION FOR A WRIT OF CERTIORARI TO
THE SUPREME COURT OF NEW JERSEY

Petitioner John R. Connor, Executor-
designate of the Estate of Mary A. Connor,
Deceased, hereby petitions for a writ of
certiorari to review the judgment of the

Supreme Court of New Jersey in this case.

(1)

QUESTIONS PRESENTED

1. Whether the appointment of an estate
Administrator, obtained without issuance of
an Order to Show Cause, and under circum-
stances where the court possessed prior
knowledge that decedent had died testate,
and had appointed an executor, is void un-
der the Due Process Clause of the Fourteenth
Amendment?

2. Whether a Notice of Application for
Letters of Administration on a decedent's
estate, not predicated upon a statutory re-
quirement of "intestacy," is void under the
Due Process Clause of the Fourteenth Amend-
ment?

PARTIES TO THE PROCEEDING ARE:

John R. Connor, Pro se (Petitioner
and Executor-designate, Estate
of Mary A. Connor)

380 Wyoming Avenue
Millburn, New Jersey 07041

Albert G. Besser, Esq. (Applicant
for Letters of Administration)
Hannoch, Weisman, Stern & Besser
744 Broad Street
Newark, New Jersey 07102

George Warren, Esq. (Administrator,
Estate of Mary A. Connor)
Warren, Goldberg & Berman
112 Nassau Street
P. O. Box 645
Princeton, New Jersey 08540

—_———

JURISDICTION

The order of the New Jersey Supreme Court
dismissing the within appeal (App. C, infra,
p- 6a) was entered on June 25, 1980. On
July 23, 1980 the New Jersey Supreme Court
denied a Petition for Rehearing (App. D,
infra, p. 7a). The jurisdiction of this
Court is invoked under 28 U.S.C. §1257(c).

The opinions herein are not reported.

CONSTITUTIONAL PROVISIONS
AND COURT RULES INVOLVED.

The Fourteenth Amendment to the United
States Constitution provides in part:

No State * * * shall deprive
any person of life, liberty, or
property, without due process of
law; nor deny to any person with-
in its jurisdiction the equal
protection of the laws.

N. J. Sup. Ct. C.P.R. 4:84-1(b) provides
in part:

The Superior Court for good
cause or if a caveat is filed or
a dispute arises, may issue an
order to show cause why the pro-
bate or letters sought should
not be granted. The order to
show cause and the complaint may

be served as provided by R. 4:67-
3* * *

N. J.- Sup. Ct. C.P.R. 4:99-1(b) (1968)
provides in part:

Actions in the Superior Court
relating to estates of decedents
* * * may be brought in summary
manner, if the court so orders.
Actions on notice * * * may be
tried and, except where these
rules otherwise direct, proceed-
ings may be taken as in an ac-
tion brought in a summary manner
under R. 4:67 * * * Nothing con-
tained in R. 4:80 to R. 4:99
Shall affect the right of the
Superior Court to proceed in a
plenary manner in any action.

STATEMENT
On November 24, 1977 Decedent Mary A.
Connor passed away in Overlook Hospital in
Summit, N. J. as a result of cardiac shock
following exploratory surgery.
Since 1969 Mrs. Connor had been the plain-

tiff in the matter of Connor v. Flynn, liti-

gation which originated in the Superior Court
of New Jersey, Chancery Division, but which,
at the time of her death, was pending in the
Appellate Division of the Superior Court.+

1 Connor v. Flynn, Docket No. C-2565-68
(trial); Docket No. A~2853-74 (Appellate
Division); Docket No. 16,605 (Supreme Court).

Subsequent to her death, Petitioner, who
is not only her son but also is appointed
Executor in her Last Will and Testament, be-
came occupied for several months with many
of the highly questionable circumstances
surrounding hex sedses death -- and, in par-
ticular, with the legal adequacy of the
"cause of death" listed on her death certifi-
cate.

On January 10, 1978, Mr. Albert G. Besser,
Esq-., an attorney who had previously repre-

sented decedent in’Connor v. Flynn and who,

on May ll, 1977 had had an October 28, 1975
award of $28,657.94 in attorneys' fees re-
versed by judgment of the Appellate Division, |
communicated with the Hon. Arthur Cc. Dwyer,
J.S.C., presiding Chancery justice in the

matter of Connor v. Flynn, to secure a date

for a new trial on the firm's application
for legal fees, the matter having been re-
manded for a re-trial.? (App. E, infra, pp.

8;9a).
2 connor v. Flynn, Docket No. A-898-75.

Ia response to Attorney Besser's request,
the court scheduled a plenary hearing on the
question of counsel fees for March 2, 1978.
(App. F, infra, p.l0a).

On February 27, 1978 there ensued an
event, the facts of which are critical to a
determination of this Petition. On that day
Petitioner personally hand-delivered a let-
ter of previous date to Justice Arthur Cc.
Dwyer, J.S.C. (App. G, infra, p. lla).

(The letter was actually given to Justice
Dwyer's clerk, His Honor having remained in
his chambers, albeit Clearly visible and
within hearing distance of the ensuing ¢on-
versation. ]

Judge Dwyer's clerk immediately inquired
whether Petitioner would be appearing at
the "plenary hearing" set for March 2, 1978.
Petitioner informed him that his mother,

party~-plaintiff in Connor v. Flynn, was de-

ceased, that he did not intend to appear on

that date, that he would not be attending

any court hearings until Mrs. Connor's will
had been probated and Petitioner had legally
been substituted for her as party-plaintiff,
and that probate would be delayed by Peti-
tioner until her death certificate had been
corrected to conform with the true cause of
death, whatever that might eventually be de-
termined to be. ?

Judge Dwyer's clerk then attempted to
persuade Petitioner to attend the March 2,
1978 hearing, anyway, stating that "Mr.
Besser will be there." The clerk also re-
marked that the court already knew of Mrs.
Connor's death and that Judge Dwyer would

allow Petitioner to appear without being .

substituted as party-plaintiff, in view of
the fact that the court had permitted Peti-

tioner to appear on decedent's behalf over

the years in Connor v. Flynn, in spite of

the fact that Petitioner was neither an at-

torney nor a party to that litigation.

3 Under the terms of Mrs. Connor's Last
Will and Testament, Petitioner was bequeath-
ed decedent's interest in Connor v. Plynn.

Petitioner again replied that he would
not be appearing in court on March 2, 1978
and handed the aforementioned letter to the
clerk. (App. G, infra, p. lla). This let-
ter discusses the proper forum for filing a
Motion for Substitution of Parties in

Connor v. Flynn (R. 4:34-1b) and is signed

by Petitioner as Executor, with a copy to

Attorney Besser.

Petitioner did not appear in court on
March 2, 1978, for reasons aforesaid, and
On or about March 4, 1978 he received a let-
ter from the firm of Hannoch, Weisman, Stern
& Besser advising of the firm's intention to
bring an action "to secure letters of admin-
istration upon the Estate of Mary A. Connor."
(App. H, infra, p. 12a).

On March 21, 1978 Hannoch, Weisman, Stern
& Besser sent out a notice (without com-
plaint) entitled "Action for Letters of Ad-
ministration" whereon, alleging the status
of creditor, it announced that an applica-

tion would be made to the Chancery court on

May 22, 1978 for the appointment of an Admin-

istrator on the grounds that "you [have]

failed for more than 40 days from her death
to probate any Will or to make application
for Letters of Administration." (App. I,
infra, p. 13a).

Upon receipt of this notice, Petitioner
contacted Mr. E. Gilman Slingerland, Jr.,
Esq., Slingerland & Slingerland, Maplewood,
New Jersey, the attorney who had prepared
Mrs. Connor's will, and inquired whether
there was any specific time limit within
which that will had to be probated. Peti-
tioner was told by Mr. Slingerland that
there wasn't any, except, that by statute
(N.J.S.A. 3A:3-19) a will could not be pro-
bated within ten days following death.

Petitioner, in reliance upon R. 4:84-1(b)

and R. 4:99-1(b) and his previous written
and oral communications with the court ad-

vising of decedent Mary A. Connor's testacy

and the fact that Petitioner was appointed

Executor, did not appear in court on May 22,

10

1978 for Attorney Besser's application for
letters of (intestate) administration.

The court, however, despite its knowledge
of decedent's testacy and Petitioner's exec-
utorship, elected not to deny this counter-
feit application but to consider it unop-
posed, and entered judgment on May 26, 1978
granting le*ters of administration to Mr.
George Warren, Esq. (App. A, infra,pp. l,
2).

Petitioner declined to accept the valid-
ity of this Administrator's appointment and
commenced the within series of appeals.

Petitioner's first "due process" argument
for reversal of the Administrator's appoint-
ment was advanced in his brief filed with
the Appellate Division of the Superior Court
of New Jersey, and reads:

| The 25 May, 1978 Judgment ap-
pointing George Warren, Esq. as
administrator of the Estate of Mary
A. Connor is null and void ab initio
because said judgment was obtained
in violation of Appellant's consti-

tutional rights to due process of
law.

11

In his brief filed with the Appellate
Division, Petitioner's principal "due pro-
cess" argument was basically predicated on
the trial court's failure to proceed via
order to show cause (R. 4:67) on the Han-
noch application. The Appellate Division,
however, affirmed the judgment of the lower

court on the ground, inter alia, that it had

found "appellant's arguments for reversal to
be unpersuasive." (App. B, infra, p. 3a).
Petitioner then filed an appeal as of
right (R. 2:2-1) with the New Jersey Supreme
Court where, in addition to rearguing the
"due process" issue of the trial court's
failure to issue a show cause order, Peti-
tioner advanced the additional argument

that the Hannoch "notice" was defective in

its failure to allege decedent's intestacy.

By Order filed June 25, 1980, the appeal
was dismissed for "failure to state a sub-
stantial constitutional question as required
by R. 2:2-1(a)." (App. Cc, infra, p. 6a).

Petitioner then filed a Petition for Rehear-

12

ing, which was denied on July 23, 1980
(App. D, infra, p. 7a).

Although the specific issue raised in
this Petition deals exclusively with the
validity of the trial court's May 26, 1978
judgment appointing an administrator for
the Estate of Mary A. Connor, it is perti-
nent to remark on the ensuing conduct of
the Administrator and his sponsor, Hannoch,
Weisman, Stern & Besser.

Following his appointment, and during
the pendency of Petitioner's various ap-
peals of that appointment in the New Jersey
courts, Administrator Warren continued to
administer the within estate -- in spite of
the fact that, under New Jersey probate law,
those appeals had the operative, legal ef-

fect of suspending his powers. Brown v.

Ryder, 42 N. J. Eq. 358, 7 A. 568 (Prerog.
Ct. 1886).

On September 23, 1989 the Administrator
actually procured the arrest of Petitioner,

who, in order to gain his release from a

13

4-day jail confinement, was compelled to
surrender both his mother's will and all
estate assets to the court.

For their efforts, Administrator Warren,
who was allowed to resign his office, and
the Hannoch firm, were awarded the collec-
tive total of $10,163.60 by the court, said
monies to be paid out of the Estate!

The Hannoch firm then proceeded to have
Petitioner "disqualified" from serving as
executor, securing the appointment of an
Administrator, C. T. A., in order to assist
that firm in its constant scheming to un-
lawfully remove monies from a court-admin-
istered trust fund, which constitutes a

principal estate asset.

xkekReik

[Petitioner's Affidavit attesting to the
truth of the matters contained in the with-
in Statement is attached hereto as Appendix

L, infra, p. 17a.]

14

REASONS FOR GRANTING THE WRIT
The order of the New Jersey Supreme Court
which is the object of this Petition dis-
missed Petitioner's. appeal for "failure to
state a substantial constitutional question
as required by R. 2:2-l(a)." (App. C,
infra, p. 6a).

The U. S. Supreme Court in Green Bay v.

Patten Paper Co., 172 U. S. 58 (1898) held

that:

No particular form of words
Or phrases has ever been de-
Cclared necessary in which the
claim of federal rights must be
asserted and it is sufficient
if it appears from the record
that*such right was specially
set up or claimed in the state
court in such a manner as to
bring it to the attention of
the court. |

Id., at 58. Under this criteria, Petition-
er's claim asserting violation of his XIV
Amendment "due process" rights was set up
at the earliest possible opportunity, given
the circumstances of this case: in his

brief filed with the Appellate Division of

15

the Superior Court of New Jersey. (See:
Statement, infra, pp. 10-11). In his ap-
pellate brief Petitioner argued that his
"due process" rights were violated when the
trial court appointed an administrator for
the Estate of Mary A. Connor without issu-
ing a show cause order and complaint in the
matter under circumstances where the trial
court had prior knowledge that decedent had

died testate and that Petitioner was ap-

pointed executor. The decision of che ap-
pellate court (App. B, infra, p. 3a) simply
stated that it found this argument to be
"unpersuasive."

On further appeal to the New Jersey Su-
preme Court Petitioner reargued this issue
and added, as an additional ground for re-
versal, the argument that the Hannoch notice
of application for letters of administration
was "defective" because it was not predica-
ted on a claim of "intestacy." The appeal
being dismissed, for reasons aforesaid,

Petitioner applied for a rehearing, which

16

was denied. (App. D, infra, p. 7a).

A preliminary question to be answered in
this case is whether the two constitutional
questions posed are "substantial"?

Under New Jersey law, an appellant is
only entitled to a second appeal as of right
"where the record reveals a substantial ra-
ther than merely a colorable question aris-
ing under the federal or state constitutions

that has not been the subject of a conclu-

sive judicial determination." In re East

Windsor Mun. Util. Auth. v. Shapiro, 57 N. J.

169, 170 (1970). The constitutional points
raised must not be palpably insubstantial.

Tidewater Oil Co. v. Mayor and Council of

Cartaret, 44 N. J. 338, 342, 209 A.2d 105,

106 (1965).

The operative facts of the within case
establish that Petitioner was arbitrarily
deprived of the office of executor of his
late mother's estate not only on account of

the failure of the trial court to follow

17

its own rules but also by a misleading, and
probably fraudulent, "notice" prepared by
one of decedent's former attorneys.
Accordingly, the "due process" questions
arising herein, where Petitioner has been
deprived of his title and right to the of-

fice of executor, are substantial because,

under New Jersey law, said title and powers
. constitute a property right due to the fact
that "[a]n executor derives from the will
his title and authority respecting the de-
cedent's personalty on the instant of the

testator's death." Hill's Executor v.

Smalley, 25 N. J. L. 374 (Sup. 1856). Heyer
vy. Sullivan, 88 N. J. Eq. 165, 102 A. 248

(Sup. 1917), affirmed 88 N. J. Eq. 595,

103 A. 1052 (E. & A. 1918). Neilson v.

Russell, 76 N. J. L. 655, 659, 71 A. 286,

288, 19 L. R. A., N. S., 887, 131 Am. St.
Rep. 672 (E. & A. 1908).

The second part of New Jersey's "substan-
tial question" test is very easily answered
in this case. Neither of the specific con-

+
-

18

stitutional questions presented in this
case and reargued in this Petition for a
writ of certiorari has been the subject of
a prior conclusive judicial determination.
Moreover, the New Jersey Supreme Court's
reason for dismissing Petitioner's appeal
is in conflict with many decisions, dis-
cussed hereinafter, from other state courts
of last resort, as well as federal courts
of appeal, on the issue of what constitutes
procedural "due process" under the Four-
teenth Amendment.
a. Whether the appointment of
an estate Administrator, obtained

without issuance of an Order to
Show Cause, and under circumstan-

ces where the court possessed prior
knowledge that decedent had died

testate, and had a inted an exec-
utor, is void under the Due Process

Clause of the Fourteenth Amendment?

The pertinent procedures governing an ap-
plication for letters of administration are
spelled out in the Civil Practice Rules list-

ed in the Rules Governing the Courts of the

19

State of New Jersey and, for purposes of

this Petition, R. 4:99-1(b) and R. 4:84-1(b).

R. 4:94-1(b) PROBATE ACTIONS: IN GENERAL,

Summary Actions provides that:

Actions in the Superior Court
relating to estates of decedents
* * * may be brought in summary
manner, if the court so orders.
Actions on notice * * * may be
tried and, except where these
rules otherwise direct, proceed-
ings may be taken as in an ac-
tion brought in a summary manner
under R. 4:67 * * * Nothing con-
tained in R. 4:80 to R. 4:99
shall affect the right of the
Superior Court to proceed in a
plenary manner in any action.

(emphasis added)

R. 4:84-1(b) provides that:

The Superior Court for good
cause or if a caveat is filed or
a dispute arises, may issue an
order to show cause why the pro-
bate or letters sought should
not be granted. The order to
show cause and the complaint may
be served as provided by R. 4:67-
ao 92 8 (emphasis added)

R. 4:99-1(b) gives to the trial divis-
ions of the Superior Court the option of

proceeding either in a summary or a plenary

20

manner in summary probate actions. If the
proceeding is to be summary, R. 4:99=1(b)
provides that it is to be brought under
R. 4:67, which rule states:
If the action is brought in a
Summary manner pursuant to R.
4:67-l(a), the complaint, veri-
fied by affidavit * * * may be
presented to the court ex parte
* * * [t]he court, if satisfied
with the sufficiency of the ap-
plication, shall order the de-
fendant to show cause why final
judgment should not be rendered
for the relief sought.
The reference to "plenary manner" in
R. 4:99-1(b) means, in common legal usage,
nothing less than a full trial. "'Plenary
suit' differs from ‘summary proceeding' in
that it proceeds on formal pleadings, for-
mal summons brings in parties; fime for

pleading and hearing is had, usually by ex-

amination of witnesses." Central Republic

Bank & Trust Co. v. Caldwell, 58 F.2d 721,

731 (Cc. C. A. Mo. 1932) °

In the within case, neither of the two

21

prescribed courses of action was followed
by the trial court. The Hannoch complaint
was presented to the court ex parte --
however it was never served upon any mem-
ber of decedent's family in accordance with
R. 4:99-1(b) or R. 4:84-1(b), which rules

Petitioner relied upon, to his detriment.

R. 4:84-1(b) would require the issuance
of a show cause order on the Hannoch appli-
cation because a "dispute" had arisen within
the meaning of that rule, as interpreted by
the New Jersey courts.

' In the matter of the Estate of William

Hadfield, Deceased, 70 N. J. Super. 483

(Union County Ct. 1961) involved a very sim-
ilar factual situation to the within case.

Hadfield concerned an application to set

aside a surrogate's judgment granting let-
ters of administration to an administrator.
In granting the application, the Union
County Court, Probate Division, held that

the surrogate had been deprived of juris-

22

diction to act because a "dispute" had a-
risen when the applicant, an attorney, ccn-
ferred with a probate clerk in the surro-
gate's office advising the clerk that he
"anticipated" receiving powers of attorney
from the heirs authorizing his appointment,
and the attorney confirmed the conversation

with a letter to the Surrogate:

Furthermore, the conference of
August 9, 1961 with the probate
clerk, and the letter of the same
date to the surrogate, created a
dispute in the surrogate court
within the meaning of R.R. 5:33
(a) (1). This dispute deprived the
surrogate of jurisdiction to make
any appointment at all. In re
Alexandravicus, supra. Accordingly,
the action of the surrogate will
be set aside.

Id., at 486. Therefore, given the Hadfield

interpretation of "dispute," Petitioner's
February 27, 1978 conversation with Chancery
Justice Dwyer's clerk, informing him of

Mrs. Connor's testacy, and the February 26,

1978 letter to the court, which Petitioner

signed as executor (See: Statement, infra,

23

pp. 6-8), are indistinguishable from the
type of occurrences which sufficed to create

the "dispute" in Hadfield, supra.

Accordingly, Petitioner's detions served
to notice a "dispute" within the meaning of
R. 4:84-1(b) and the trial court should not
have appointed an administrator without
first serving a show cause order and the
Hannoch complaint upon Petitioner and all

other members of decedent's family.

It is Petitioner's contention that a

show cause order was the maximum allowable

action that the trial court should have
taken on its review of the Hannoch applica-
tion for letters. In point of fact, given

the court's knowledge of decedent's testacy,

as well as Petitioner's executorship, this

application should have been denied by the

' court.

As a matter of law, it would appear that

because the trial court already knew that a

24

will existed, the judgment appointing an
(intestate) administrator is void ab initio.
"A grant of administration as in case of
intestacy, where the decedent left a valid
will which was not known of at the time,
but is afterward produced and probated, is

voidable only and not void ..." 33 c. J. S.

Executors and Administrators, §30 at 920

(1979). Impliedly then, according to

Corpus Juris Secundum, a grant of adminis-

tration where the decedent left a valid will
which was known of at the time of the ap-

pointment is void and ultra vires.

2 8 @

The failure to follow the rules in the
matter of the Hannoch application for letters
of administration on this estate establish
a serious abridgment of Petitioner's "due
process" rights.

The constitutional limitations in the XIV
Amendment and in the "due process" limita-

tions of the state constitution are designed

25

to safeguard fundamental rights of persons
and property against arbitrary and oppres-

sive state action. Washington Nat. Ins.

Co. v. Board of Review of N. J. Unemploy-

ment Compensation Commission, 1N. J. 545,

64 A.2d 443 (1949). "'[D]ue process of
law' means, in the due course of legal pro-
ceedings according to the rules and forms
which have been established for the pro-
tection of private rights..." (emphasis

added) Sinclair v. Sinclair, 196 Tenn. 538,

268 S.W.2d 573, 575 (1954). Accord: Dupuy

v. Tedora, 204 La. 560, 15 So.2d 886, 890

(1943). Dation v. Ford Motor Co., 314 Mich.

152, 22 N.W.2d 252, 258 (1946).

"Due Process quéetions under the Federal
Constitution may be presented either by
failure of the state to follow its own rules
or by state rules serving as a deprivation

of due process." Field v. Boyle, 503 F.2d

774 (C. C. A. I11. 1974). And "[w]lhere the

sovereign has established rules to govern

26

its own conduct it will be held to self-
imposed limitations on its own authority,
departure from which denies procedural due

process." Bluth v. Laird, 435 F.2d 1065

(C. A. 4).

The operative facts herein establish
conclusively that the trial court substan-
tially departed from -- in fact, totally
failed to follow -- those court rules, R.
4:99-1(b) and R. 4:84-1(b), which govern
summary probate applications of this type.

Given the court's knowledge of deced-

ent's testacy and Petitioner's executor-

ship, the Hannoch application for letters
of admininistration should have been denied.

At the maximum, the court should have done

no more than issue a show cause order and

complaint, in accordance with R. 4:84-1(b).
For the Chancery court to proceed to

judgment, on a complaint filed ex parte,

under the circumstances of this case, not

only violated the aforesaid court rules

27

but also constituted an "arbitrary and

capricious" action, in violation of this

Petitioner's Fourteenth Amendment "due

process" rights.

28

b. Whether a Notice of Applica-
tion for Letters of Administration
on a decedent's estate, not predi-
cated upon a statutory requirement
of “intestacy,” 1S void under the
Due Process Clause of the Four-
teenth Amendment?

The second "due process" issue addres-
sed in this Petition is whether the Hannoch
Notice for Letters of Administration (App. I,
infra, p.13a) constitutes a substantial com-
pliance with the controlling statute or
whether the process, itself, is so radically
defective that it amounts to no legal process
at all.

The test to determine the legal suf-
ficiency of a notice is that "[a] notice
must be clear, definite, and explicit, and

not ambiguous." Aris Gloves, Inc. v. U.S.,

188 F. Supp. 50 (Cust. Ct. 1960).. Accord:

Holly Development, Inc. v. Board of County

Comrs., 140 Colo. 95, 342 P.2d 1032 (1959).
"Clearness" has been defined by the
New Jersey Supreme Court to mean that "it

[the notice] should give the necessary in-

29

formation * * * the notice is not clear un-
less its meaning can be comprehended with-

out explanation." Frantz Equipment Co. v.

Anderson, 37 N. J. 420, 181 A.2d 499 (1962).

Accord: In re Weeks, 4 F. Supp. 558, 560

(D. C. Texas 1933). (emphasis added).

The general rule is that where a
method of giving notice is prescribed by
statute, such method is exclusive and there
must be strict compliance with the statute.

Potter Title and Trust Co. v. Berkshire

Life Ins. Co., 156 Pa. Super. 1, 39 A.2d

268 (1944).

Where, however, the statute does not
prescribe a form of notice the issue then
becomes whether the notice given consti-
tutes a "substantial compliance" with the
statute, construed in the light of its in-

tent and purpose. Portage Shoe Mfg. Co. v.

Reich, 53 N. J. Super. 600, 148 A.2d 47

(1959). Accord: Tooele Meat & Storage Co.

v. Morse, 43 Utah 515, 136 P. 965 (1913).

The pertinent and controlling statute

30

in this case is N.J.S.A. 3A:6-4 Letters of

Administration, which states:

If any person dies intestate,
administration of the personal es-
tate of such intestate shall be
granted to the surviving spouse of
such intestate, if he or she will
accept the same, and, if not, or
if there be no such person, then
to the next of kin of such intes-
tate, or some of them, if they or
any of them will accept the same,
and, if none of them will accept
the same, then to such other pro-
per person as will accept same.

If such intestate leaves no re-
lations justly entitled to the ad-
ministration of his personal es-
tate, or if his next of kin shall
not claim the administration within
40 days after the death of such in-
testate, the superior court or sur-
rogate's court may grant letters of
administration to any fit person
applying therefor. (emphasis added)

The legal distinction between a general
administrator and an executor is that the
former is appointed by the court where there

is an intestacy, whereas the latter is ap-

pointed by the will of the decedent. Holcomb

v. Coryell, 12 N. J. Eq. 289 (1857).

The critical and operative word in

N.J.S.A. 3A:6-4, appearing no less than six

31

times, is "intestate" and Petitioner sub-
mits that any notice of application for
letters under N.J.S.A. 3A:6-4 must include

a claim of intestacy because "it is a neces-
Sary prerequisite to a grant of ordinary ad-
ministration on the estate of a decedent
that he should have died intestate."

33 C. J. S. "Executors and Administrators,"

§30, p. 920 (1979). "A grant of such admin-
istration necessarily involves, and is based
on, a finding or adjudication of intestacy..."
Id., at 920.

The Hannoch "notice" (App. I, infra, p.
13a) absolutely fails to assert decedent
Mary A. Connor's intestacy but, instead,
merely states as the grounds for the appli-
cation:

"you having failed for more
than 40 days from her death to
probate any will or to make ap-
plication for Letters of Admini-
stration." (App. I, infra, p.13a)

Neither of the two reasons stated in the

Hannoch notice is legally sufficient to serve

as a basis for the application because of the

32

fact that N.J.S.A. 3A:6-4 exclusively limits

the issuance of letters of administration to

situations where there is an intestacy.

Not only is there no New Jersey statute
that would require the probate of a will
within 40 days after death (Hannoch Reason
#1) but also a third party (a "fit" person)
may Only apply for letters where the dece-
dent's next-of-kin fail to apply "within

40 days after the death of such intestate..."

N.J.S.A. 3A:6-4. (Hannoch Reason #2) (em-

phasis added). The two reasons cited in

the Hannoch "notice" are therefore clearly

erroneous as a matter of law.

Consequently, the Hannoch notice does

not meet the test enunciated in Aris Gloves,

Inc., supra ["notice must be clear, definite

and explicit, and not ambiguous"], it does

not meet the standard defined in Frantz Equ-

ipment Company, supra ["it should give the

necessary information * * * the notice is

not clear unless its meaning can be compre-

33

hended without explanation"] and it does not
constitute "substantial compliance" with the

controlling statute, N.J.S.A. 3A:6-4, as re-

quired by Portage Shoe Mfg. Co., supra.

x ke

Respondent Hannoch, Weisman, Stern &
Besser's appellate brief contains a refer-
ence (Db 7-24) to the source of the form of
notice which was used by the firm in its ap-
plication, specifically citing to 8 N. J.

Practice, Clapp, Wills and Administration,

§2283 (1978).
Enclosed herewith as Appendix "J" is a
copy of the cited Clapp form. As can be

readily seen, it contains neither of the

reasons cited in the Hannoch notice but, in-
stead, refers solely to a decedent's "intes-
tacy." (App. g, infra, p. 15a)

The Hannoch strategem, of deleting the

word "intestate" from the Clapp form of
notice and inserting, in lieu thereof, the

words "you having failed for more than 40

34

days from her death to probate any Will or
to make application for Letters of Admini-
stration" was deliberately done in order to

mislead the parties on whom the notice was

served -- as a result of which this notice

is vitiated. See: Polizzotto v. D'Agostino,

170 La. 932, 129 So. 534, 536 (1930). In re

State Treasury Note Indebtedness, 185 Okla.

10, 90 P.2d 19, 22 (1939).

An exception to this rule would be found
where "surplusage" which did not mislead
Or prejudice, would not vitiate the notice.

Commercial Standard Ins. Co. v. Garett,

70 F.2d 969 (C.C.A. Okla. 1934). Wilson v.

City of Long Branch, 27 N. J. 360, 142 A.2a

837, cert. denied 358 U. S. 873 (1958).
The reasons advanced by the Hannoch firm,
however, do not qualify as surplusage per se.

They are not in addition to a claim of intes-

tacy, or, for that matter, any other reason.
They stand in this notice as the sole cited

grounds for the firm's application. However,

35

whether deemed "surplusage" or not, the
grounds cited in the firm's notice are
"misleading" and therefore the process it-

self is vitiated. Polizzotto v. D'Agostino,

supra, at 932.

Wherefore, the process, itself is defec-

tive under the aforementioned constitutional

"due process" standards, causing the "notice"

herein to be a legal nullity.

x keke

What the United States Supreme Court is
actually confronted with in the within Peti-
tion is a judgment appointing an estate ad-
ministrator that has been secured through
fraud -- because the Hannoch notice is fraud-

ulently misleading. See: Berkowitz v. Lyons,

98 N. J. L. 198, 119 A. 20 (1922). Not only
are the grounds for the firm's application
misleading, but also "wilfully made as to a
material fact for the purpose of inducing a-
nother to act-on them * * * to his injury."

Lyster v. Berberich, 3 N. J. Super. 78, 65 A.

36

2d 632 (App. Div. 1949).
To constitute a fraud, intent is a neces-

sary element. Luedeke v. Rosell, 115 N.J.L.

194, 178 A. 799 (1935). Cowley v. Smith,

46 N.J.L. 380, 50 Am. Rep. 432 (1884).

The operative facts of the within case
Clearly demonstrate the intent of the Hannoch
firm to employ deception and artifice for
the purpose of deliberately misrepresenting
material facts to Petitioner. How do we know

this? We know it because the complaint that

was filed by the Hannoch firm states on its
first page:

"1. On November 24, 1977
Mary A. Connor died intestate..."
(emphasis added)

(App. K, infra, p. 16a)
This complaint, which was never served
upon Petitioner, or any other member of dece-

dent's family, is conclusive evidence that

the Hannoch firm was very much aware that

"intestacy" is a statutory requirement for

the issuance of letters of administration.

37

The next question that must be answered
is whether Petitioner acted on the mislead-
ing reasons stated in the Hannoch notice,
to his injury?

As heretofore related in the Statement
within, upon Petitioner's receipt of the
Hannoch notice he immediately contacted Mr.
E. Gilman Slingerland, Jr., Esq., the at-
torney who had prepared Mrs. Connor's will,
and inquired as to whether there was any
legal obligation on Petitioner's part to
probate his mother's will within 40 days,
as alleged by Hannoch, Weisman, Stern &
Besser. Mr. Slingerland replied that there
was no such requirement, excepting that a
will could not be probated within 10 days
after death. N.J.S.A. 3A:3-19.

"The fundamental requisite of due process

* * * is the opportunity to make an informed

choice whether to acquiesce or contest * * *"

Duff v. Sherlock, 432 F. Supp. 423 (D. C. Pa.

1977). Accord: Trinity Episcopal Corp v.

38

Romney, 387 F. Supp. 1044, 1084 (D.C.N.Y.
1974).

Petitioner consulted an attorney on the

principal reason asserted in the Hannoch

notice, and being informed of its legal in-

validity, elected to take no further action

[apart from his having already informed the

court of Mrs. Connor's testacy on February

27, 1980] with respect to an application

the court should have denied or, at the max-

imum, issued an order to show cause.

Petitioner therefore acted on the mis-
leading application of the Hannoch firm to
his injury, thus being fraudulently deprived
of the executorship to which he is entitled
and to which he has a right of appointment
under the terms of the Last Will and Testa-
ment of Mary A. Connor.

| Fraud perpetrated by means of a
judgment is no more entitled to im-
munity than a fraud perpetrated by
means Of a deed or mortgate * * *
that the forms of law have been
pursued is no protection in a court
of equity, if the result aimed at
and reached is fraud.

The Mechanics National Bank at Newark v.

39

Burnet Manufacturing Company, 33 Eq., 6

Stew. 487 (1881).

It has long been established that a
"court has inherent power to control its
own judgments to protect itself from the

fraud of litigants." Shammas v. Shammas,

9N. J. 321, 88 A. 2d 204 (1952). Also,
"(rjelief from a final judgment or order

for fraud upon the court may be allowed
under New Jersey rules regardless of whether
the fraud charged is denominated intrinsic
or extrinsic." Id., at 321.

Wherefore, the Hannoch "notice" of ap-

plication for letters of administration upon

the Estate of Mary A. Connor, being fraudu-

lent, and the Judgment appointing an admini-

strator, being predicated upon that fraud,

are both void as a matter of law.

40

CONCLUSION
For the foregoing reasons, the petition

for a writ of certiorari should be granted.

Respectfully submitted,

Onc <&
HN R. CONNOR, Pro se

21 September, 1980

la
APPENDIX A

JUDGMENT OF THE SUPERIOR COURT,
CHANCERY DIVISION, ESSEX COUNTY
Docket No. P-392-77
(Decided May 25, 1978)

In the matter of
THE ESTATE
OF

MARY A. CONNOR, DECEASED.

Before:
DWYER, Chancery Judge.

DWYER, Chancery Judge:

It appearing by the complaint of Hannoch,
Weisman, Stern & Besser, Esqs., that Mary A.
Connor, late of the County of Essex and
State of New Jersey, died on November 24,
1977, intestate; and it further appearing
that due notice of the application of the

plaintiff has been given to all of the com-

2a

petent adult next of kin entitled to admini-
stration upon the estate of the said intes-
tate, whose right thereto is prior or equal
to that of the plaintiff.

It is thereupon on this 25 day of May,
1978, adjudged that letters of administra-
tion upon the estate of the said Mary A.
Connor be granted to George Warren, Esq.,
upon his giving bond to the Superior Court
of New Jersey in the sum of $5,000.00, con-
ditioned according to law, and with sure-
ties to be approved by this court which a-
mount shall be received upon the filing of
the inventory.

/s/ ARTHUR C. DWYER,
J. me Ca

3a

APPENDIX B

OPINION OF THE SUPERIOR COURT OF
NEW JERSEY, APPELLATE DIVISION
Docket No. A-4484-77
(Decided September 24, 1979)

In the matter of
THE ESTATE
OF

MARY A. CONNCR, DECEASED.

Before:
MATTHEWS, Presiding Judge,
ARD and POLOW, Appellate Judges.

Per Curiam

Appellant Connor appeals from the May 25,
1978 final judgment entered in the chancery
division, Essex County, granting letters of
administration to George Warren, Esquire, up-
on the Estate of Mary A. Connor.

Assuming issuance of letters of administra-
tion on application of a creditor is a "final"

appealable judgment, we find appellant's argu-

4a

ments for reversal to be unpersuasive. Jur-
isdiction to grant letters of administration
in instances where there has been no prior
application within 40 days after death is
specified in N.J.S.A. 3A:6-4. See Clapp,

Wills and Administration, 3d ed. §§705, pp.

276 and 280. In the words of N.J.S.A. 3A:
6-15, "it shall be the duty of any person
desiring original letters of administration,"
to make such application where decedent is
intestate. That no prior application was
made is undenied.

Although appellant claims to be in pos-
session of a will of decedent which names
him executor, he has rejected every effort
to have him produce such a document. The
duty of one who is designated executor and
in possession of a will, to produce it for
probate has been established since Day v.
Day, 3 N. J. Eq. 549 (Prerog. 1831). See
Ellicott v. Chamberlain, 38 N. J. Eq. 604

(E. & A. 1884) and Clapp, cited above, §116

Biss

5@2

at p. 204. Enforcement is provided by N.Jd.
S.A. 3A:3-23 and is carried out, as in this

case, by summary proceedings, In re Bracher's

Will, 60 N. J. Eq. 350 (Prerog. 1899), aff'd.
60 N. J. Eq. 449 (E. & A. 1900).

Affirmed.

6a
APPENDIX C

ORDER OF THE SUPREME COURT OF NEW JERSEY
SUPREME COURT OF NEW JERSEY

Docket No. 16,613
(Decided June 24, 1980)

In the matter of
THE ESTATE
OF

MARY A. CONNOR, DECEASED.

Before:

WILENTZ, Chief Justice.

This matter having been duly considered
by the Court, it is ORDERED that the appeal
is hereby dismissed for failure to state a
substantial constitutional question as re-
quired by R. 2:2-1(a).

WITNESS, the Honorable Robert N. Wilentz,
Chief Justice, at Trenton, this 24th day of
June, 1980.

/s/ STEPHEN W. TOWNSEND,
Clerk.

7a
APPENDIX D

ORDER OF THE SUPREME COURT OF NEW JERSEY
SUPREME COURT OF NEW JERSEY

Docket No. 16,613
(Decided July 21, 1980)

In the matter of
THE ESTATE
OF

MARY A. CONNOR, DECEASED.

Before:

WILENTZ, Chief Justice.

This matter having been duly presented
to the Court, it is ORDERED that the motion :
for rehearing is denied.

WITNESS, the Honorable Robert N. Wilentz,
Chief Justice, at Trenton, this 21st day of
July, 1980.

/s/ STEPHEN W. TOWNSEND,
Clerk.

8a
APPENDIX E

HANNOCH, WEISMAN, STERN & BESSER
Counsellors at Law
744 Broad Street
Newark, New Jersey 07102

January 10, 1978

Honorable Arthur C. Dwyer
Superior Court of New Jersey
Hall of Records

Newark, New Jersey 07102

Re: Connor v. Flynn
Docket No. A-898-75

Dear Judge Dwyer:

In the above-entitled matter, which is
before Your Honor, there is unresolved an
application by various counsel for counsel
fees.

By judgment entered on October 28, 1975
by Judge Antell, fees were awarded (copy en-
closed herewith), but on May 11, 1977 that
judgment was reversed by the Appellate Divi-
sion for reasons set forth in its opinion,
also enclosed.

The matter thus has been remanded to the
trial court for a new plenary hearing.

There is no immediate urgency, but since
the monies paid to plaintiff pursuant to
various judgments below in the substantive
action are on deposit with the clerk of the
court, and drawing only nominal interest, I
would assume that she too, as well as coun-
sel, would like the matter resolved.

Accordingly, may I ask that Your Honor's
office procure the file in this matter and

9a

communicate with all parties with respect to
an appropriate hearing date. I believe that
1-1/2 days will be required.

I should also advise the court of one pro-
blem. In the past plaintiff has been "repre-
sented" by her son who is not a member of the
bar; while no one objected to this before the
Appellate Division, where the court was at
least able to confine the presentation to the
record and legal issues then before it, in my
opinion Mr. Connor's participation at the
trial court proceedings has contributed might-
ily to past difficulties. I will object a-
gainst his participation at any future hear-
ing, except in the capacity as a witness. I
would strongly urge the court to advise
plaintiff to obtain counsel or else be pre-
pared to represent herself.

Respectfully,

/s/ ALBERT G. BESSER

AGB/mn
Enclosures

cc: Fred Blackwell, Esq.
John J. Hanlon, Esq.
Mrs. Mary Connor

10a
APPENDIX F
SUPERIOR COURT OF NEW JERSEY

Essex County Courts Bldg.
Newark, New Jersey

January 26, 1978

Albert G. Besser, Esq. Robert Cherry, Esq.
Hannoch, Weisman, Stern 152 Market Street

& Besser Paterson, N. J.
744 Broad Street 07505
Newark, N. J. 07102
Mrs. Mary A. Connor Fred Blackwell, Esq.
380 Wyoming Avenue 19129 Roman Way
Millburn, N. J. 07041 Gaithersburg, Md.

20760

John B. O'Neill, Esq.
Milton, Keane & Brady
40 Journal Square
Jersey City, N. J.
07306

Re: Connor v. Flynn

Dear Madam & Sirs:

The above-named cause has been remanded
to this court for a plenary hearing on the
question of counsel fees. This matter will
be heard on March 2, 1978, at 9:00 a.m.

Very truly yours,

/s/ ARTHUR C. DWYER, J.S.C.

ACD: ras

lla

APPENDIX G

380 Wyoming Avenue
Millburn, N. J. 07041
26 February, 1978

Justice Arthur C. Dwyer, J.S.C.

Superior Court of New Jersey Re: Connor
Essex County Courts Building Vv.
Newark, New Jersey 07102 Flynn

Dear Justice Dwyer:

Please be advised that a Motion for Sub-
stitution of Parties, under R.4:34-1l1(b), in
the above matter, is pending the resolution
of the matter of a correct death certificate
for Mary A. Connor.

In view of my mother's death, should not
the motion for substitution, at least with
respect to A-898-75 [versus A-2853-74, which
is pending in Chancery Division], be made
in the Appellate Division?

I would further advise the court that
Attorney Cherry is neither a party to any
of the Connor v. Flynn proceedings nor does
he represent either the Estate of Mary Ellen
Flynn or the Estate of Mary A. Connor.

Very truly yours,

/s/ John R. Connor,
Executor

cc: Besser
O'Neill
Cherry
Blackwell

12a
APPENDIX H
HANNOCH, WEISMAN, STERN & BESSER
Counsellors at Law
744 Broad Street
Newark, New Jersey 07102
March 3, 1978
Mr. Thomas B. Connor
380 Wyoming Avenue
Millburn, New Jersey 07041

Re: Estate of Mary A. Connor

Dear Mr. Connor:

This is to advise you that we are bring-
ing an action to secure letters of admini-
stration upon the Estate of Mary A. Connor.
The object of this inquiry is to give you
notice of the action so that you might ap-
pear and apply for letters, if that is your
wish.

In connection with our action, please ad-
vise the names and addresses of your child-
ren and the names, addresses and ages of
each of your grandchildren.

Enclosed is a stamped return envelope
for your convenience in replying.

Very truly yours,

/s/ ASHLEY STEINHART

/le
Enclosure

13a
APPENDIX I

HANNOCH, WEISMAN, STERN & BESSER
744 Broad Street

Newark, New Jersey 07102

(201) 621-8800

SUPERIOR COURT OF NEW JERSEY
CHANCERY DIVISION: ESSEX
COUNTY
Civil Action
In the matter of the Estate: ACTION FOR LETTERS

i _ OF ADMINISTRATION

MARY A. CONNOR, Deceased osinianees

TO: Thomas B. Connor, widower, and Thomas B.
Connor, Jr., John R. Connor, Robert L. Connor,
Carol Moken, next of kin and heirs of Mary A.
Connor, deceased:

You are hereby notified that Hannoch, Weis-
man, Stern & Besser, a creditor of Mary A.
Connor, late of the County of Essex, will on
May 22, 1978, at 10:00 A.M. make application
to the Superior Court of New Jersey, Hall of
Records, Newark, New Jersey, for the appoint-
ment of some fit person as administrator of
the estate of the said Mary A. Connor, you
having failed for more than 40 days from her
death to probate any Will or to make applica-

tion for Letters of Administration.

l4a

Hannoch, Weisman, Stern &
Besser, Attorneys Pro se

By_/s/ ASHLEY STEINHART
A Member of the Firm

DATED: Newark, New Jersey
March 21, 1978

15a
APPENDIX J

8 New Jersey Practice, Clapp, Wills and Ad-
Ministration §2283 (1978)

(FORM)

ESSEX COUNTY SURROGATE'S COURT

In the Matter of the Estate)
NOTICE OF APPLI-

of ) CATION FOR LET-
TERS OF ADMINI-
JOHN JONES, Deceased ) STRATION

To: Richard Jones, one of the next of kin of
John Jones, Deceased:

You Are Hereby Notified that on ’

the day of , 19 , at 9 A.M.
I shall apply to the Surrogate of the County
of Essex at his office in the Hall of Records,
Room 206, Market and High Streets in the City
of Newark, for the grant to William Jones,
of letters of administration upon the estate
of John Jones, late of the City of Newark
in the County of Essex and State of New Jer-

sey, who died on or about the day of
, 19__, intestate.

Dated: Newark, N.J.
P an:

A.B.
Attorney for William Jones

l6a
APPENDIX K

Set out below is an excerpt from the com-
plaint filed by Hannoch, Weisman, Stern &
Besser in the within matter.

HANNOCH, WEISMAN, STERN & BESSER
Counsellors at Law
744 Broad Street
Newark, New Jersey 07102

SUPERIOR COURT OF NEW JERSEY
CHANCERY DIVISION-ESSEX COUNTY
DOCKET NO.

In the Matter of
The Estate : Civil Action
of : VERIFIED COMPLAINT

IN ACTION FOR
Mary A. Connor, Deceased.: ADMINISTRATION

Plaintiff, Hannoch, Weisman, Stern & Bes-
ser, Esqs., with offices at 744 Broad Street,
Newark, New Jersey 07102, by way of complaint,
says:

lL. On November 24, 1977, Mary A. Connor
died intestate, domiciled at 380 Wyoming Ave-
nue, in the Town of Millburn, County of Es-

sex and State of New Jersey.

" 17a

APPENDIX L

John R. Connor, Pro se

380 Wyoming Avenue —
Millburn, New Jersey 07041
(201) 762-5587

In the matter of

THE ESTATE : Civil Action
OF 3 AFFIDAVIT

MARY A. CONNOR, DECEASED.

State of New Jersey)
) SS:
County of Camden )

a
Personally appeared before me, John R.
Connor, who, first being duly sworn, upon
-his oath, deposes and says that:

1. I have read the facts set forth in
the Statement to my Petition for a Writ of
Certiorari, dated September 21, 1980, and
I aver, of my own knowledge, that such
facts are true and correct.

Fas

(Signature of Affiant)

Signed and sealed tr day 7 elober
before me this eensna 1980
gh
Me vig a ee er
Notary Public
State of New Jersey

MARIA F. PEPIAK
NOTARY PUBLIC OF NEW JERSEY
My Commission Expires Mas, 19, 1983

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_0658%3A1. Public record. Not legal advice.