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Ordinary of v. United States Fidelity & Guaranty Co.

decided as amended june 13 1945.: April 26, 1945.

ORDINARY OF STATE OF NEW JERSEY
v.
UNITED STATES FIDELITY & GUARANTY CO. OF BALTIMORE, MD.



Author: Mclaughlin

Before BIGGS, McALLISTER, and McLAUGHLIN, Circuit Judges.

McLAUGHLIN, Circuit Judge.

This is the second time this case has been before us. Originally it had been tried by a district judge, sitting without a jury, who found in favor of the defendant. We reversed the judgment because there were no findings of fact by the court below. We remanded the cause so that the District Court might make such findings of fact and conclusions of law, 3 Cir., 136 F.2d 536. The judge who had tried the case died before he had the opportunity to attend to this. Thereafter, another district judge, under the heavy handicap of not having heard the matter, after reviewing the record and hearing arguments of counsel, found facts and conclusions of law and decided in favor of the defendant. It is from the second judgment that plaintiff appeals.

The evidence shows that on May 7, 1930, James D. Halton died, a resident of Lakewood, Ocean County, New Jersey. Toms River is the county seat of Ocean County. On August 21, 1930 a caveat was filed against the probate of Mr. Halton's will. A petition asking for the appointment of an administrator pendente lite was presented to the Ocean County Orphans' Court. This set out that the deceased had owned approximately $150,000 in negotiable securities and unregistered bonds, and a considerable amount of stock and other assets. Toms River Trust Company was appointed administrator pendente lite with its bond fixed at the sum of $125,000. Such bond, dated August 19, 1930, with Lloyds Casualty Company as surety, was approved by the court and filed with the surrogate. Frank W. Todd of Toms River, was the agent for Lloyds Casualty and he executed the bond as attorney in fact for that concern. On September 10, 1930, Toms River Trust Company was appointed ancillary administrator pendente lite in the same estate by the Register of Wills of Philadelphia County, Philadelphia, Pennsylvania. The bond filed there was for $200,000, with National Surety Company as surety.The Board of Directors of Toms River Trust Company thereafter passed a resolution which does not appear in any of the appendices. Concerning this, the trial judge said in his opinion that, by virtue of it, Anthony M. Then, President of Toms River Trust Company, on September 12, 1930 removed from a safe deposit box in the Girard Trust Company in Philadelphia, securities valued at about $140,000. Then brought these to Toms River Trust Company. On March 31, 1931, Todd also became agent and attorney in fact for the United States Fidelity & Guaranty Company. On July 21, 1931, Toms River Trust Company filed an inventory and appraisement in Ocean County of the property of the Halton estate. This included $8500 worth of real estate and the assets which had been taken from Pennsylvania. The total value of the estate was placed at $171,258.35. At the period of the expiration of the Lloyds' bond in August 1931, another bond in the Halton estate to the Ordinary of the State of New Jersey and in the sum of $125,000 was executed by the Toms River Trust Company, as administrator pendente lite, with the United States Fidelity & Guaranty as surety. This bond is dated August 19, 1930. It was executed for the bonding company by Todd as attorney in fact. It is a printed bond, the back of which reads:

"Ocean County Surrogate's Court

"In the Matter of the Estate of deceased

"Bond

"Administrator with Will Annexed

"Filed

"Recorded

"Surrogate"

An application is attached to the bond. Questions and answers of this numbered 5, 6, 12 and 16 are pertinent and read:

"5. Nature of bond. Administrator CTA Penalty $125,000."

"6. Court in which filed. Ocean County Orphans' Court Toms River"

"12. Please list briefly the property, real and personal, covered by this bond

Real Estate $8,500

Personal ...


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