In re Young's Estate

• Decision Date: 29 November 1932
• Citation: In re Young's Estate, 10 N. J. Misc. 27, 163 A. 433 (N.J. 1932)
• Parties: In re YOUNG'S ESTATE.
• Court: New Jersey Supreme Court

163 A. 433

In re YOUNG'S ESTATE.

Orphans' Court of New Jersey, Somerset County.

Nov. 29, 1932.

Proceedings in the matter of the estate of Mercie J. Young, deceased. On application for an order of distribution of the residue of the estate of the decedent.

Decree in accordance with opinion.

Hugh K. Gaston, of Somorville, for petitioners.

Arthur I. Robinson and Ryman Herr, both of Somervillo, and Peer & Mahr, of Newark, for respondents.

REGER, J.

The final account of the executors of the last will and testament of Mercie J. Young, deceased, was passed and allowed by this court on September 30, 1932, and a petition is now presented to the court for an order of distribution of the residue of the estate of decedent.

From the stipulation of facts filed, it appears that there remains in the hands of the executors to be disposed of under the residuary clause of said will the sum of $13,769.39, and that the testatrix left her surviving no brother or sister, nor the issue of a brother or sister, no father or mother, no uncle or aunt, but that she left her surviving seventeen first cousins on the paternal side and one first cousin on the maternal side, and that she also left her surviving a number of children of deceased first cousins and others who were related in a more remote degree than first cousins, in all, thirty-seven persons in addition to the eighteen first cousins.

The determination of the questions raised by this application requires a construction of the residuary clause of the will of decedent, which reads as follows: "All the rest, residue and remainder of my estate I give, devise and bequeath to my next of kin to be divided between them equally as nearly as may be, share and share alike."

The principal question presented is: Do the first cousins take under this bequest to the exclusion of those related in a more remote degree?

On behalf of the first cousins it is contended that the phrase "next of kin" should be construed as meaning the nearest in blood to the decedent; while on behalf of the other relatives it is claimed that the phrase should be construed to mean those who in cases of intestacy take under the New Jersey statute of distribution.

The particular section of our statute of distribution which it is claimed should control the distribution reads as follows: "If there be no husband or widow, child or any legal representative of any child, nor a parent, brother or sister, nor the representative of a deceased brother or sister, then all of the estate to be distributed equally to the next of kindred, in equal degree, of or unto the intestate and their legal representatives as aforesaid." (P. L. 1918, c. 63, p. 181 [Comp. St. Supp. § 146—1691.)

Apparently the appellate courts of New Jersey have not construed the words "next of kin" standing alone and unqualified in a bequest by will of personal property, but the question has been passed upon by the courts of other states in this country and by the English courts. There is a hopeless conflict of authority in the decisions of these courts.

One line of cases holds that the words "next of kin" mean the nearest blood relations according to the law of consanguinity, and another line of cases holds that the words "next of kin" mean those entitled to take under the statutory distribution of intestate estates.

In support of the rule last mentioned, it is argued that the words "next of kin'" have acquired a technical meaning, that that technical meaning requires distribution according to the statute regardless of whether they be in fact nearest of kin. and that these words must be construed to have been used in this technical sense rather than in their popular and ordinary sense.

Support for this argument is found in several cases cited from other jurisdictions. Among these cases are: Slosson v. Lynch, 43 Rarb. (N. T.) 147; 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; New York Life Ins. & Trust Co. v. Hoyt, 161 N. Y. 1, 55 N. E. 299; New York Life Ins. & Trust Co. v. Winthrop, 237 N. Y. 93, 142 N. E. 431, 31 A. L. R. 791; Godfrey v. Epple, 100 Ohio St. 447, 126 N. E. 886, 11 A. L. R. 317; Close v. Benham, 97 Conn. 102, 115 A. 626, 20 A. L. R. 351.

In view of the numerous decisions that next of kin is synonymous with nearest of kin, it would appear from a careful reading of the cases above cited that the meaning attributed to the words next of kin in some of these cases is a forced and strained construction to meet the exigencies of the particular case and to prevent those relatives by blood or marriage from being disinherited who would ordinarily have been the natural objects of testator's bounty and who, if he had died intestate, would have shared in his estate.

It is a well-recognized rule of construction that all words contained in a will must be given effect so far as possible, that doubts must be resolved in favor of the testator having said what he meant; and that, when words are plain and clear when read in their ordinary sense, they must control. Kutschinski v. Sheffer, 109 N. J. Eq. 659, 158 A. 499; Woodruff v. White, 78 N. J. Eq. 412, 79 A. 304, 305.

As was said by Vice Chancellor Garrison in the case last above cited: "The words used in a will * * * must be taken in their natural meaning; the court is called upon to construe what the testator has said, and not to supply language, and thereby make him say that which he did not say."

If it be conceded that technical terms used in a will must be given their technical meaning, I am unable to find that the words "next of kin," when used in a bequest, have acquired any technical meaning in New Jersey other than what the words themselves import.

"Next" means nearest. "Kin" means blood relationship. Next of kin, therefore, means nearest blood relations. 2 Jarman on Wills (5th Ed.) p. 643.

In the case of Swasey v. Jaques, 144 Mass. 135, 10 N. E. 758, 762, 59 Am. Rep. 65, Field. J., speaking for the court, said: "It is certainly difficult to distinguish between the expressions 'next of kin,' 'nearest of kin,' 'nearest kindred,' and 'nearest blood relations,' and primarily the words indicate the nearest degree of consanguinity, and they are, perhaps, more frequently used in this sense than in any other."

In the leading English case of Elmsley v. Young, 2 Myl. & Keen. 780, it was held that the phrase "next of kin" in an indenture of trust applied to the next of kin in the strictest sense of the term excluding persons entitled by representation under the statute. In this case Lord Cottenham said: "If next of kin means those who would take under the statute, it must include in many cases those who are not next of kin."

This same principle was laid down by the House of Lords in the case of Withy v. Mangles, 10 Clark & F., page 215, and settled the question in England.

In Clark v. Mack, 161 Mich. 545, 126 N. W. 632, 633, 28 L. R. A. (N. S.) page 479, it was held that, under a bequest to nearest of kin of testator, his brothers and sisters take to the exclusion of children of deceased brothers and sisters. The finding of the court was expressed in the opinion as follows :

"In the absence of a contrary intent, a gift to next of kin is a gift to the nearest of kin in the strictest sense, excluding persons who under the statute of distribution, would be entitled to take by representation."

To the same effect are the following cases in other jurisdictions: Leonard v. Haworth, 171 Mass. 496, 51 N. E. 7; Larson v. Chicago, R. I. & P. R. Co., 160 Ill. App. 247; DeGraffenreid v. Iowa Land & T. Co., 20 Okl. 687, 95 P. 624; Hearn et al. v. Hastings et al. (Del. Ch.) 152 A. 129; Morse v. Lowe, 182 Mich. 607, 148 N. W. 970; Redmond v. Burroughs, 63 N. C. 242; Smith v. Egan, 258 Mo. 569, 167 S. W. 971, Ann. Cas. 1915D, 723.

In New Jersey, Vice Chancellor Backes, in the case of Barrett v. Egbertson, 92 N. J. Eq. page 118, 111 A. 326, 327, construed the words "next or nearest of kin on my father's side" to mean the class nearest in blood. In the opinion of the Vice Chancellor he said: "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 Cl. & F. 215. In this country, Massachusetts, in Swasey v. Jaques, 144 Mass. 135, 10 N. E. 758, 59 Am. Rep. 65; Fargo 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. 230; Redmond v. Burroughs, 63 N. C. 242: Michigan, in Clark v. Mack, 161 Mich. 545, 120 N. W. 632, 28 L. R. A. (N. S.) 479; Missouri, in Smith v. Egan, 258 Mo. 569, 167 S. W. 971, Ann. Cas. 1915D, 723; New Hampshire, in Galloway v. Babb, 77 N. H. 259, 90 A. 968; Maryland, in Graham v. Whitridge, 99 Md. 248, 289, 57 A. 609, 58 A. 36, 66 L. R. A. 408— follow the English rule of construction."

After referring to some of the New York cases hereinbefore cited, he said by way of dictum: "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....