Opinion
03-03-1921
STETSON v. KINCH et al.
Horace & Henry T. Stetson, of Orange, for complainant. William A. Lord, of Orange, for defendants.
Proceeding by Henry T. Stetson, substituted administrator with the will annexed of Ruth Ann Kerrick, deceased, against Arthur L. Kinch and others, seeking Instruction as to disposition of funds. Distribution directed.
Horace & Henry T. Stetson, of Orange, for complainant.
William A. Lord, of Orange, for defendants.
BACKES, V. C. The complainant, administrator, seeks instructions as to the disposition of funds in his hands. The fifth clause of Mrs. Kerrick's will reads:
"Fifth. All the rest, residue and remainder of my estate, I give, devise and bequeath unto Catherine Reybold, wife of Edward Reybold, Margaret Matthews, widow of James Matthews, Ruth Blair, wife of Matthew Blair, children of George Kerrick and Mary Ann Kerrick, Ruth Dean, Margaret Thompson, Elizabeth K. Brown, Lucinda Squires, children of my sister, Susan Darling, deceased, and to Joseph Darling, Francis Arnold and John Darling, their heirs and assigns to be divided equally between them, share and share alike."
Lucinda Squires died before the testatrix. The administrator is in doubt as to whether her share lapsed. The residuary bequest is to the legatees Individually, in common, not to them as a class. Collins v. Bergen, 42 N. J. Eq. 57, 6 Atl. 284, rules the point. It was there said:
"The rule is that, where an aggregate fund is given to several persons nominatim, to be divided among them in equal shares, if one of them dies before the testator, the share of such decedent will lapse. The gift on this case is to six persons by name, to each one-third of one-half of the residuary estate in remainder.
"* * * It is true that the mere fact that the testator, in a devise or bequest to persons, mentions them by name is not conclusive upon the question whether the gift is to those personsas a class or as individuals. But the rule is as above stated, and there is nothing in this case to take it out of the rule."
See, also, Trenton Trust & Safe Deposit Co. v. Sibbits, 62 N. J. Eq. 131, 49 Atl. 530. The legacy to Lucinda Squires lapsed.
The administrator then asks to be advised to whom to make distribution. The testatrix died May 25, 1914. Her nearest of kin were nephews and nieces. There were also descendants of deceased nephews and nieces. The statute of distribution in force at the death of the testatrix, as amended by chapter 316 of the Laws of 1908 (3 C. S. p. 3874, § 169), provides:
"III. And in case there be no widow, then nil 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."
The section is precisely the same as section 169, subd. III, of the act of 1899 (P. L. p. 204). construed in Smith v. McDonald in 69 N. J. Eq. 765, 61 Atl. 453, affirmed 71 N. J. Eq. 261, 65 Atl. 840, where it was held that the nearest living next of kin of the deceased form the stock entitled to the fund; that the survivors take pro rata, and descendants of deceased members of the class take per stirpes.
Counsel argued that chapter 47 of the Laws of 1914 (P. L. 69) was controlling. That act was passed March 20, 1914, just before the death of the testatrix, but did not take effect until July 4th following. C. S. p. 4973.
The administrator will be directed to distribute the intestate estate among the nephews and nieces and the descendants of deceased nephews and nieces; the nephews and nieces each taking a share, and the descendants of deceased nephews and nieces their ancestors' share.