McCarter & English and George W. C. Mo-Carter, both of Newark, for the motion. Lindabury, Depue & Faulks, of Newark, opposed.
Syllabus by the Court.
Section 65 of the Orphans' Court Act, 3 Comp. St. 1910, p. 3832, has no application to a bill by a life insurance company against the executors of the insured for cancellation of the policy of insurance on the ground of fraud.
Suit by the Travelers' Insurance Company against Catherine E. Baker and another, executors of the last will and testament of William H. Baker, deceased. On motion to strike out the bill of complaint.
McCarter & English and George W. C. Mo-Carter, both of Newark, for the motion.
Lindabury, Depue & Faulks, of Newark, opposed.
BERRY, Vice Chancellor.
The motion to strike the bill of complaint is denied for the reasons stated in my opinion filed in The Prudential Insurance Company of America v. Merritt-Chapman & Scott Corporation (N. J. Ch.) 162 A. 139.
There is, in the instant case, one additional ground urged for striking the bill—that it is premature and in violation of section 65 of the Orphans' Court Act, 3 Comp. St. 1910, p. 3832, § 65, which provides that no action either at law or in equity, except for funeral expenses, shall be brought or maintained against executors or administrators of the estate of any decedent within six months from the time letters testamentary or of administration have been issued, except by special leave of the court. I do not consider that that statute has any application to the present controversy. The purpose of the statute is expressed to be "to enable executors or administrators to examine into the condition of the estate and ascertain the amount and value thereof, and the debts to be paid out of the same." It is designed to give the executors an opportunity to marshal the assets of the estate and to determine their adequacy to meet its obligations, and to grant immunity from suits to enforce the payment of debts during that period. That it does not grant absolute immunity see United Security Life Insurance & Trust Company v. Vandegrift, 51 N. J. Eq. 400, 26 A. 985, Ayres v. Shepherd, 64 N. J. Eq. 166, 53 A. 690. But, even if the statute had any application, it is not insurmountable, as leave of court may now be granted nunc pro tunc, if necessary, as was done in Jaburg v. Kirschenbaum, 90 N. J. Eq. 510, 107 A. 60. This statute is unavailing to defendant as a ground for its motion.