Barrett v. Egbertson

• Decision Date: 26 August 1920
• Docket Number: No. 46-737.,46-737.
• Parties: BARRETT v. EGBERTSON et al.
• Court: New Jersey Court of Chancery

111 A. 326

BARRETT

v. EGBERTSON et al.

No. 46-737.

Court of Chancery of New Jersey.

Aug. 26, 1920.

Bill by Halsey M. Barrett, surviving executor of and trustee under the will of Abram Speer, deceased, against Rachel Ann Egbertson and others, for construction of will and advice. Advice given.

Barrett & Barrett, of Newark, for complainant.

William K. Flanagan, of Newark, for first cousins once removed.

Smith, Mabon & Herr, of Hoboken, James L. Garabrant, Reed & Reynolds, Lehlbach & Van Duyne, and Harry N. Reeves, all of Newark, and Richard S. Colfax, of Paterson, for defendants, cousins further removed.

BACKES, V. C. Abram Speer died September 19, 1903, testate, leaving bis estate in trust for his widow for life, and then provided in his will:

"3. On the death of my said wife, I direct my surviving executor and trustee, to pay over, distribute or convey all the remainder of my estate, to such person or persons then living, as shall at that time, that is, at the time of the death of my said wife, be my next or nearest of kin on my father's side; and if there shall be more than one of such next of kin then living, then the remainder of my estate shall be divided; distributed or conveyed to them in equal shares."

The widow died August 20, 1918. At that time the testator's nearest of kin on his father's side were children of deceased first cousins. More remotely connected were grandchildren and great grandchildren of other deceased first cousins. The first named claim the estate to the exclusion of the kin further removed, and the surviving executor and trustee under the will, being uncertain as to among whom to make the distribution, asks the advice of the court.

The principal question argued was the meaning to be given to the words "next or nearest of kin." The grandchildren and great grandchildren of deceased's first cousins contend that "next or nearest of kin" is to be construed as meaning those who take under the statute of distribution (3 Comp. St. 1910, p. 3874, § 169), and not the class nearest in blood.

The rule they invoke is that, if a testator employs terms of technical significance, they will be construed as having been used in a technical sense, if the will is otherwise silent as to the intent. This wholly artificial and arbitrary rule rests upon the motion that the testator knew their technical meaning, and used them accordingly, albeit he was as ignorant of it as at birth. The rule is invoked for convenience, and of necessity, and only when the subject falls inevitably within the scope of its operation, which is at all times narrow.

The cases cited in the briefs (Welsh v. Crater, 32 N. J. Eq. 177; Fisk v. Fisk, 60 N. J. Eq. 195, 46 Atl. 538; Trenton Trust Co. v. Donnelly, 65 N. J. Eq. 119, 55 Atl. 92; Meeker v. Forbes, 84 N. J. Eq. 271, 93 Atl. 887; Albright v. Van Voorhis, 104 Atl. 27; Leavitt v. Dunn [an insurance policy] 56 N. J. Law, 309, 28 Atl. 590, 44 Am. St. Rep. 402) are not illustrative of the rule. They hold, as it is uniformly held, that when a testator or settlor limits his personal estate to his heirs at law, the persons who take under the statutes of distribution are denominated. In the last-cited case Justice Dixon pointed out the reason:

"In the opinions delivered in these eases, the phrase 'next of kin' is frequently used by the judges as their synonym for the word 'heirs' in the disposition of personal property, but what they mean by the phrase is not merely the nearest kinsmen, but the distributees under the statute, including both the widow and those who, by the statute, may represent deceased kinsmen. This appears from the language of the learned chancellors in the earliest and the latest of these decisions, that 'the next of kin are entitled to claim under such description [heirs] as the persons appointed by law to succeed to the personal property,' thus basing their title, not on kinship, but on the statute."

A gift to "next of kin" simpliciter, has not received judicial consideration by the courts of this state. In England, after a long struggle, it was finally decided in favor of the civil law acceptation, as against the definition of the statute of distribution that "next of kin" means the class nearest in blood. Elmsley v. Young, 2 Myl. & K. 780; Withy v. Mangles, 10 Clark & P. 215. In this country. Massachusetts, in Swasey v. Jaques, 144 Mass. 135, 10 N. E. 758, 59 Am. Rep. 65; Pargo v. Miller, 150 Mass. 225, 22 N. E. 1003, 5 L. R. A. 690; Keniston v. Mayhew, 169 Mass. 166, 47 N. E. 612; Leonard v. Haworth, 171 Mass. 496, 51 N. E. 7; North Carolina, in Jones v. Oliver, 38 N. C. 369; Simmons v. Gooding, 40 N. C. 382; Harrison v. Ward, 58 N. C. 236; Redmond v. Burroughs, 63 N. C. 242; Michigan, in Clark, v. Mack, 161 Mich. 545, 126 N. W. 632, 28 L. R. A. (N. S.) 479; Missouri, in Smith v. Egan, 258 Mo. 569, 167 S. W. 971, Ann. Cas. 1915 D, 723; New Hampshire, in Galloway v. Babb, 77 N. H. 259, 90 Atl. 968; Maryland, in Graham v. Whitridge, 99 Md. 248, 289, 57 Atl. 609, 58 Atl. 36, 66 L. R. A. 408—follow the English rule of construction. In New York, in an able opinion by Sutherland, J., in the Supreme Court (Slosson v. Lynch, 43 Barb. [N. Y.] 147) the English doctrine and authorities are vigorously criticized and rejected in favor of the view that "next of kin" has acquired a fixed legal meaning, born of the statute, and when used without more means "next of kin" as therein defined. The case has been cited with approval by the Court of Appeals. Murdock v. Ward, 67 N. Y. 387; Luce v. Dunham, 69 N. Y. 36; Tillman v. Davis, 95 N. Y. 17, 47 Am. Rep. 1; N. Y. Life Tns. Co. v. Hoyt, 161 N. Y. 1, 55 N. E. 299.

Were I called upon, in the case at hand, for an opinion upon this sharp point, I would be troubled to accept the New York doctrine, for, the primary conception of "next of kin" is the class nearest of blood, and such is the language of the statute, "to the next of kin in equal degree," following the rule of the civil law, which it modifies by letting into the distribution a remoter degree, not however, advancing that degree. And to impute to a testator an intention to import into the class of nearest in blood others who are not, without something in the will indicating that intent, would be to write, not to construe, the will. Duffy v. Hargan, 62 N. J. Eq. 588, 50 Atl. 678. A bequest to "my next of kin according to the laws of New Jersey" is an illustration of such intention. The North Carolina and Michigan cases argue along this line with impressionable force.

The question, however, is not present for decision. The bequest, it will be observed, is to the next or nearest of kin of the testator on his father's side. It is more restricted in its operation than the statute, which includes as well the next of kin on the mother's side, and therefore does not carry the idea that the next of kin in the sense of the statute were intended, the foundation of the rule of construction adopted by the New York courts. To state it in another way, it will not be presumed that the words "next of kin" were used in the technical sense of the statute, unless the context permits full play to the statutory method of distribution.

Then again, the testator did not express his intention in the language of the statute. He gave the remainder of his estate to his "next or nearest of kin on my father's side." He evidently used "next or nearest" in the popular sense, and synonymously; "next" to denote those nearest in place, nearest in degree, rank, or relation, and, as if to emphasize his meaning, he added the definitive "nearest," as used in common parlance. If he had meant next of kin ad infinitum, in degree, as distinguished from those nearest in degree, why subjoin "nearest?" In construing the will, effect must be given to every word of intendment, and in giving "nearest" signification I cannot find in the expression "next or nearest of kin" any other meaning than the class nearest in blood to the testator at the death of his widow. That he meant the nearest kinsmen finds support in the geneologlcal situation at the time the will was executed. The testator was childless, and he himself was an only child. He had first cousins living and cousins once, twice, and thrice removed, galore. In these circumstances the direction that, "if there shall be more than one of such next of kin then living" (at his wife's death), the estate should be divided among them in equal shares, takes on significance.

The bequest, it will be noted, is not to the next or nearest of kin in equal shares, but "if" there should be more than one survivor of them then they should take in equal shares. A supererogation, it is true, hut commonly used by a draftsman of wills,...