
    Monmouth County Orphans Court.
    IN THE MATTER OF THE ESTATE OF SOPHIA E. WILLISTON, DECEASED.
    Decided December 21, 1939.
    For the petitioner, Edward B. Talcott, Milton M. Unger.
    
    For Margaret F. McLaughlin, acting guardian, J. Victor Carton, appearing for Chester B. McLaughlin.
    
    Formerly representing Sophia E. Williston, guardian, now deceased, William E. Foster.
    
   Giordano, Judge.

This matter comes on before me in the form of a petition addressed to the court by one Edward B. Talcott of the borough of Point Pleasant, in the county of Ocean, in this state, as next friend for Louise Williston, an incompetent party. The petition prays for the appointment of a guardian ad litem for the purpose of taking an appeal from the probate of the last will and testament of Sophia E. Williston, mother of the incompetent party, which last will and testament was admitted to probate by the surrogate of the county of Monmouth on March 29th, 1937.

The Bank of New York and Trust Company and John Foster Dulles produced before the surrogate a paper-writing purporting to be the last will and testament of the said Sophia E. "Williston, deceased, wherein the said Bank of New York and Trust Company and John Poster Dulles were named as executors thereof.

On March 29th, 1937, the surrogate made an order admitting said paper-writing to probate as and for the last will and testament of said Sophia E. Williston, deceased, and did on that day grant letters testamentary thereof to said Bank of New York and Trust Company, one of the executors in said will and subsequently on April 30th, 1938, did grant additional letters testamentary to John Poster Dulles, another of the executors named in said will.

It is contended in the petition that the order of the surrogate admitting the said will to probate and issuing letters testamentary thereon is erroneous, improper and contrary to law because at the time of the making and of the supposed execution of said paper-writing, and for a long time prior thereto, the said Sophia E. Williston was of unsound mind and as such was incapable of disposing of her estate by will, and it is further contended in the petition that at the time said will was probated the said Louise Williston had been adjudged incompetent by the Court of Chancery of New Jersey, and was, at that time, confined to the Payne-Whitney Memorial Hospital in the city of New York; that she was thereafter transferred from said hospital to New York Hospital, Westchester Division, White Plains, New York, where she is now confined and to which institution she was formerly committed by an order made by the County Court of Westchester, New York, on March 30th, 1938.

The petition further recites that on or about the 18th day of April, 1939, the said Louise Williston, as petitioner, and petitioner, Edward B. Talcott, on her behalf, pursuant to a notice theretofore given to Margaret E. McLaughlin, guardian of the said Louise Williston, filed a petition in the Court of Chancery of New Jersey to traverse the inquisition in the cause in which the said Louise Williston was adjudged to be an incompetent in the Court of Chancery of New Jersey, or to award an issue to try the fact of lunacy, and whether she was capable of the government of herself, her lands and tenements, goods and chattels and such proceedings were had thereon that the Court of Chancery of Mew Jersey made an order on June 12th, 1939, wherein Ealph E. Lum, Esquire, one of the special masters of said court, was appointed to examine the said Louise Williston in the presence of Dr. Christopher C. Beling and Dr. Moses Keschner, two psychiatrists appointed by said court; that-thereafter the said special master having conducted said examination and filed his report, from which it appeared that the said Louise Williston was incapable of managing her affairs and was suffering from a type of insanity, and that a traverse of the inquisition would be futile and that she was. not capable of government of herself, her lands and tenements, goods and chattels; that thereafter and on or about the 6th day of July, 1939, the said Court of Chancery made an order denying and dismissing the petition of the said Edward B. Talcott and the petition of the said Louise Williston, as aforesaid.

The petition further recites that Margaret E. McLaughlin was appointed substituted guardian of the said Louise Willis-ton by the Orphans Court of this county on June -19th, 1931', and that she has continued so to be and is now acting as such guardian.

The question to be considered is whether this court should under the facts before it exercise its power and authority to grant the petition of Edward B. Talcott, as next friend, that he be appointed guardian ad litem for Louise Williston, incompetent, to appeal in her behalf from the probate of the will of her mother, notwithstanding that incompetent has a qualified and acting general guardian.

The time within which an appeal from -the surrogate may be taken has elapsed. The proceeding of the surrogate is a finality until it is disturbed by a direct attack upon it. dSTo attack has been made, and if one is made it should originate before the surrogate; the Orphans Court cannot on application set it aside.

Margaret F. McLaughlin, the appointed guardian, is acting under the authority of this court. Proofs are barren that she is arbitrarily exercising this authority and that she is unjustifiably refusing to take the proceedings prayed for in the petition. The court is circumspect of any deviation from the statute unless it is obvious that an injustice is being done. I find no evidence which would justify the abrogation of the statute, bio attack is made upon the appointment or upon the qualifications of the guardian, nor is there any proof before me that the guardian has an interest which is adverse to that of the incompetent person.

The power and authority which the courts have and which the courts are duty bound to exercise should be exerted when satisfied that it is for the best interests of the incompetent or insane person. The facts before me convey nothing more than an honest difference of opinion between this petitioner and the acting guardian.

I find no basis under the instant circumstances for the appointment of a guardian ad litem, and accordingly dismiss the petition and deny the application.  