STEVENS, V. C.
Suit by Rose Sternberg, executrix of Jacob Stern, against. Rose Wolff, executrix of the estate of David Wolff. Bill dismissed.
Merritt Lane, of Jersey City, for complainant.
Adrian Riker, of Newark, for defendant.
STEVENS, V. C. This case appears to be entirely without merit. The same matter was litigated in the Essex orphans' court, in 1908, and was decided adversely to complainant's contention.
In the case of Walter Sternberg against complainant and defendant, I stated most of the facts pertinent to the present situation and I shall only here repeat them as far as may be necessary to an understanding of the grounds of my decision. Rose Sternberg was first married to Jacob Stern. Jacob died in 1892, leaving him surviving the complainant and one child, Walter. By his will he gave this child a legacy and made his wife his residuary legatee. As far as appears, he left no debts. He was a manufacturing jeweler, and his estate amounted to about $6,000. There was, in addition, some life insurance. His executors were his wife and David Wolff, defendant's husband, who died in July, 1912. Stated broadly complainant's claim is that in 1892 David took possession of and misappropriated the assets of Jacob Stern; that by means of these assets he realized a large fortune and that that fortune belongs to Mrs. Sternberg, the complainant. For five years after Jacob's death a close intimacy existed between complainant and David Wolff, her uncle by marriage. The intimacy was promoted by the fact that in July, 1893, she had married Lazar Sternberg, her present husband, who, together with Rose Wolff, had formed a business partnership and subsequently a corporation of which David Wolff, Rose's husband, was treasurer. In 1897 a quarrel broke out, and the litigation since that time has been almost continuous. It seems to have begun when David called upon complainant to file an inventory and account of Jacob's estate. She accounted in December, 1897, charging herself with $525.50. To this David, who did not join in the account, excepted, and subsequently in July, 1900, withdrew the exceptions. In December, 1907, complainant called upon David to account. He denies having received any assets. The matter was referred to Mr. Kocher as advisory master, and testimony was taken. The master reported in favor of David's contention, and thereupon the Essex orphans' court, on June 1, 1909, ordered:
"That the citation heretofore issued upon the application of Rose Sternberg, requiring David Wolff to file his account as executor of the estate of Jacob Stern or show cause why he has not done so, be and the same is hereby dismissed."
The whole question turns upon how David held the money. It is contended by complainant that on Jacob's death he held it in trust for complainant and that he has so held it, or the property into which it was converted, ever since. It is contended by defendant that he or his wife became simply a borrower of the money which, there being no debts and no legacies except Walter's, not in controversy here, belonged absolutely to complainant, and that the money thus borrowed has been long since repaid. I have no doubt but that the original transaction was in legal effect a lending of money by complainant either to Rose or to her husband,David. For years complainant received interest on it. It was needed and utilized by the partnership or corporation of L. Sternberg & Co., in which her second husband, Lazar, had a large interest, and it is quite impossible to believe that she did hot know what was being done with it.
In Walter Stern's case I decided that as to him, both complainant and David stood as trustees, responsible for the $2,000 legacy which I am informed has now been paid. But inter sese there was no trust, after they ceased to act as executors. David was simply a borrower, or at most an agent, and complainant needed no protector, for she had one in her husband, Lazar, a business man of large experience. There has been no semblance of any trust or confidence, in fact, since they began to quarrel in 1897. There being no confidential relationship, I fail to see on what ground this court could assume jurisdiction, even if the very question had not been already litigated in the orphans' court and had not become res adjudicata. In the law courts, the case would have been long since barred by the statute of limitations.
I think the bill should be dismissed.