Opinion
05-21-1900
FISK v. FISK et al.
William M. Lanning, for complainant George E. Green, for defendant Henry H. Clark & Co. James Willis Gleed, for defendants C S. Gleed and J. W. Gleed.
Bill by Harvey Edward Fisk, as trustee, against Perrin Bartlett Fisk and otbers, for the construction of a will.
William M. Lanning, for complainant George E. Green, for defendant Henry H. Clark & Co. James Willis Gleed, for defendants C S. Gleed and J. W. Gleed.
REED, V. C.Jonathan Fisk died on December 5, 1872. He left a will dated January 28, 1808, in which, after making certain bequests, he proceeded as follows: "Fifth. It is my will, and I do hereby give, devise, and bequeath unto my beloved wife, Mary A. Fisk, the income, rents, and dividends of all the rest and residue of my estate, whatsoever and wheresoever it may be, for and during the full term of her natural life. Sixth. And, at and after the decease of my said wife, then I give, devise, and bequeath the said residue of my estate to such persons as would then be my heirs at law under the statute of distribution of the state of New Jersey." The testator left no children or issue. His widow died March 24, 1890. After her death the complainant was appointed trustee to execute the remaining testamentary trusts. The estate of the testator consisted entirely of personal property. The question propounded is, among whom, and in what portions, is this personal property to be distributed? It is observed that by the direction of the sixth clause of the will the residue is bequeathed to such persons as would be the heirs at law of the testator under the statute of distribution of this state "then" (that is, at the decease of the widow). At the date of the death of Mary A. Fisk there were living no ancestors and no descendants, no uncles or aunts, and no brothers or sisters, either of the whole or of the half blood of Jonathan Fisk. His nearest kiu were 21 nephews and nieces, the children of deceased brothers and sisters of the testator. There were also 25 descendants of 8 deceased nephews and nieces of Jonathan Fisk, including 2 descendants,—one of a deceased grandnephew, and another of a deceased grandniece, of the testator. It is to be first observed that there are technically no heirs at law under the statute of distribution. What is meant by the use of these words in the sixth clause is the next of kin under the statute of distribution. Under our statute of distribution, as it stood previous to March 22, 1899, it is entirely clear that the 21 nephews and nieces would have taken the residue, to the entire exclusion of all the grand and great-grand nephews and nieces of the testator. By the statute as it then stood, no representation among collaterals was permitted after brothers' and sisters' children. But the revised act of March 22, 1899 (P. L. 1899, p. 204) struck from the statute the prohibitive clause against representation among collaterals. The statute originally stood thus:
"Sec. 2. In case there be no children nor any legal representative of them then one moiety of the said estate shall be allotted to the widow of the said intestate, and the residue of the said estate shall be distributed equally to every of the next of kindred of the intestate, who are in equal degree, and those who represent them: provided, that no representation shall be admitted among collaterals after brothers and sisters children.
"Sec. 3. In case there be no widow, then all the said estate to be distributed equally, to and among the children; and in case there be no child, then to the next of kindred in equal degree of or unto the intestate and their legal representatives as aforesaid and in no other manner whatsoever."
The revised act of 1899 left out the italicized words in the sections as above displayed. The purpose of the legislature in making this alteration cannot be doubted. It is true, it seems to have been the practice of the ecclesiastical court to permit no representation among collaterals beyond the children of brothers and sisters, and the prohibitive clause in the original statute of 22 & 23 Car. H. merely confirmed the previous practice; yet the deliberate excision of the prohibition from our act by the legislature was well understood to be for the purpose of placing representation among collaterals upon the same footing as representation among lineals. It is indisputable, therefore, that children of a deceased niece or nephew will divide the share of their parent, and the child or children of a deceased grandniece and grandnephew will take the share that its or their parent would have taken if alive. It is mooted, however, whether all nephews and nieces take share and share alike, or whether each group of children of a deceased brother or sister take among them the share which their parent would have taken,—in other words, whether they take per capita or per stirpes, by representation. They take per capita. It is the doctrine, under the statute of distribution, that the claimants take per stirpes only when they stand in unequal degrees, or claim by representation, and then the doctrine by representation is necessary. But when they stand in equal degree, as three brothers, three grandchildren, three nephews, etc., they take per capita, or each an equal share, because in this case representation, or taking per stirpes, is not necessary to prevent the exclusion of those in a remoter degree. 2 Kent, Comm. 426; Wagner v. Sharp, 33 N. J. Eq. 520, and cases cited by Chancellor Runyon and the reporter. The nephews and nieces, therefore, form a rank of kinsmen, between whom and the testator there was none of nearer kin, and so take each an equal share of the property to be distributed. But a child or children of a deceased niece or nephew takes, by representation, the share the deceased parent would have taken if living; and as representation is now, under the statute, unlimcourt
Is that the words, "For sixty-day forfeiture clause, see bond," which were, without leave of the court, added in March, 1899, more than a year after the entry of this judgment, be stricken off, and also that the execution issued on said judgment (being fl. fa. No. 82, to the April term, 1899, of this court) be set aside. . There is no evidence here that the entry of the above clause was anything more than a mistake, but we wish to announce that after a judgment has been entered and completed, as this was, no alterations of the judgment should be made, changing its character in any way, whether by addition or otherwise, without leave of the court. Let the rule be made absolute.