Francisco v. Citizens Trust Co.

• Decision Date: 11 December 1942
• Docket Number: 129/572.
• Citation: 29 A.2d 320,132 N.J.Eq. 597
• Parties: FRANCISCO et al. v. CITIZENS TRUST CO. et al.
• Court: New Jersey Court of Chancery

29 A.2d 320

132 N.J.Eq. 597

FRANCISCO et al.

v. CITIZENS TRUST CO. et al.

129/572.

Court of Chancery of New Jersey.

Dec. 11, 1942.

Decree Affirmed Jan. 22, 1943.

See 29 A.2d 884.

Suit in equity by Sherman W. Francisco and others against the Citizens Trust Company, substituted administrator of the estate of Sherman G. Francisco, deceased, and others, for construction of deceased's will and a codicil thereto.

Decree construing the will and codicil.

Robert W. Moncrief, of Newark, for complainants.

Bailey & Grimm, of Newark (Francis F. Welsh, of Montclair, of counsel), for defendant George B. Bailey.

Boyd & Dodd, of Montclair (Harold J. Brown, of Montclair, of counsel), for defendant Montclair Trust Co.

Werksman & Saffron, of Clifton, for defendant Mary F. Payne and others.

George T. Anderson, Jr., of Paterson, for defendant Juliet G. M. Francisco and others.

Frank J. Valgenti, Jr., of Madison, for defendant Vida Naegeli and others.

J. Chester Massinger, of Paterson, for defendants Frank M. Francisco and E. Blanche Francisco.

Charles S. Van Auken, of Paterson, for defendant Citizens Trust Co.

Philip Goodell, of Montclair (Charles R. L. Hemmersley, of Montclair, of counsel), for defendants Little Falls Sand & Gravel Co. and Bank of Monclair.

KAYS, Vice Chancellor.

The bill in this case was filed for the construction of the will and codicil of Sherman G. Francisco who died in 1924.

Testator left him surviving his widow, two brothers and four children of a deceased brother. His widow died August 10, 1940. One of the surviving two brothers died in 1938 leaving him surviving five children. Therefore, there were living at the death of testator's widow, one brother and nine nieces and nephews of testator.

The second clause of the will bequeaths testator's residence to his widow.

The third paragraph reads as follows: "Third: I give and bequeath to my said wife, Harriet Francisco, the use, benefit and enjoyment of the income of the balance of my estate for and during the term of her natural life, and after her death, I give, bequeath and devise said residue of my estate, wherever and of whatever it may be to my next of kin in equal shares in fee."

The codicil to the will reads as follows:

"I hereby give and devise to my wife, Harriet Francisco, absolutely, the burial plot belonging to me located in Mount Hebron Cemetery.

"In all other respects I hereby ratify and confirm my aforesaid will."

The question before me is the construction to be given "next of kin" as used in the third clause of the will.

The executor of Harriet F. Francisco, testator's widow, contends that the widow was the sole next of kin within the meaning of the statute in force in 1924 (2 Cum. Sup., C.S., p. 2628, Sec. 146-169, par. II, N.J.S.A. 3:5-3) and is, therefore, entitled to the whole of the residuary estate.

The complainants, who are three of the four children of Ellsworth E. Francisco, the brother who predeceased the testator, contend that the residuary estate vested in testator's next of kin exclusive of the widow immediately upon the death of Sherman W. Francisco. They contend, therefore, the residuary estate should be divided into six equal parts and that one of said parts should go to each of the four children of Ellsworth E. Francisco; one to the executors of J. Houston Francisco, the brother of testator who died in 1938; and one to Frank M. Francisco, the brother of testator who is still living.

Two different constructions of the will are urged by other defendants. One is that the words "next of kin" as used in said will are intended to refer to the testator's blood relatives at the time of his death. At the time of the hearing the solicitor of Frank M. Francisco offered his client as a witness. The testimony so offered was for the purpose of showing that testator intended the words "next of kin" to mean "nearest blood relative". I am inclined to the opinion that the testimony offered is not relevant. Assuming that it is relevant, it throws no light on the intended meaning by the testator of the words "next of kin".

The other construction urged is that the testator intended to make a gift of the remainder of his residuary estate in equal shares to all those persons who would take as next of kin under the statute of distribution, the class to be determined as of the date of the death of the life tenant.

Mr. Justice Bodine pointed out in Carter v. Martin, 124 N.J.Eq. 106, 108, 199 A. 589, 590, that, although it is true that the words "next of kin", when used by a testator, have no fixed meaning to be applied in all cases, and that their use raises a question of intention to be determined from an examination of the will as a whole, it is, nevertheless, equally true that the ordinary meaning accorded to the words, in the absence of a different intention, is that they were used to designate those persons who would take under the statute of distribution. Apgar v. Hoffman, 113 N.J. Eq. 233, 166 A. 159, affirmed sub nom. Hoffman v. Apgar, 115 N.J.Eq. 171, 169 A. 690; Trenton Trust Co. v. Gane, 125 N.J.Eq. 389, 6 A.2d 112, affirmed 126 N.J. Eq. 273, 8 A.2d 708. It has been urged that the phrase "next of kin" has a primary meaning which encompasses only those in the class nearest of blood to the testator under Guarantee Trust Co. v. Miller, 112 N.J.Eq. 493, 164 A. 859, affirmed on the opinion below 115 N.J.Eq. 295, 170 A. 615. A careful reading of that opinion, which cites the case of Barrett v. Egbertson, 92 N.J.Eq. 118, 111 A. 326, makes it clear that the opinion in the Miller case is in line with the other cases above cited; that is, that the use of words "next of kin" either standing alone or accompanied by other language is always a question of intention to be resolved by the application of the basic rules of testamentary construction. A reading of the whole will leads me to the conclusion that testator intended the words "next of kin" to be understood in their secondary sense; that is, as statutory distributees. Such being the case, it then becomes necessary to determine what person or persons constitute the "next of kin" of Sherman G. Francisco.

As a preliminary step to such determination, the question arises as to whether the vesting of the remainder took place at the death of...