Mahr v. State, C--1924

• Decision Date: 30 January 1951
• Docket Number: No. C--1924,C--1924
• Citation: 12 N.J.Super. 253,79 A.2d 335
• Parties: MAHR v. STATE et al.
• Court: New Jersey Superior Court

Page 253

12 N.J.Super. 253

79 A.2d 335

MAHR v. STATE et al.

No. C--1924.

Superior Court of New Jersey, Chancery Division,

Essex County.

Jan. 30, 1951.

Lester E. Mahr, Newark, pro se.

Fred G. Stickel, III, Newark, for defendant Township of Cedar Grove.

Theodore D. Parsons, Atty. Gen. (Osie M. Silber, Deputy Atty. Gen.), for defendant State.

FRANCIS, J.S.C. (Temporarily assigned).

This matter is before the court on an interpleader complaint. There is no dispute as to the facts and the parties have submitted the problems involved to the court for determination.

The plaintiff, as administrator of the estate of Anna Marie Mayer, deceased, filed his account in the Essex County Court. An order of approval thereof was entered which, among other things, directed that the balance remaining in the hands of said accountants, which now amounts to $3, 379.75, be disposed of according to law.

The parties concede that since his appointment and down to the present time, the administrator has made diligent and adequate search for heirs or next of kin of the decedent, and that none has been found; further, that the Township of Cedar Grove, where the decedent lived and worked for many years in the Essex County Overbrook Hospital, knows of no heirs or next of kin; and that the decedent's marriage was annulled in this State.

In view of the fact that there are no known heirs or kindred capable of inheriting the residue of the estate, the administrator was subjected to two demands therefor, one by the State of New Jersey under the Escheat Act (R.S. 2:53--16, N.J.S.A.) and the other by the Township of Cedar Grove under R.S. 3:5--9, N.J.S.A., the act governing the distribution of personal property.

In the face of these conflicting claims, the administrator filed his interpleader complaint asking the court to determine the merits of the respective claims and designate which of the two claimants is entitled to receive the fund.

Cedar Grove argues that interpleader will not lie here because the State has not prosecuted the proceedings in the Chancery Division of the Superior Court as prescribed by sections 21, 22, 23, and 24 of the Escheat Act, and obtained a judgment 'declaring that the property described * * * has escheated to the State.' (Sec. 22.) The contention is that, since section 23 provides that upon the filing of such judgment the 'person having such property in their possession shall forthwith deliver the same to the Treasurer of the State of New Jersey', the right of the State, if any, is inchoate and not such as would permit either recognition thereof in this proceeding or a judgment that the State is entitled to the fund.

In the sections already adverted to, the Echeat Act ordains the procedure to be followed by the State in order to establish its claim. It appears that a petition (complaint) shall be filed in the Chancery Division of the Superior Court setting out that certain personal property has escheated to the State and that the defendant named has custody or possession of such personal property. The complaint in this type case should set forth that the 'owner of such personal property has died intestate without heirs or known kindred capable of inheriting the same and without leaving a surviving spouse.' (Sec. 21.) And the complaint shall ask the Court ot enter a judgment escheating the property to the State.

After the filing of the petition (complaint), the person having possession of the property may be required by court order to furnish to the Attorney General or to his deputy appointed to prosecute the action, all information he has with relation to the last known address of any person having any interest in the personal property.

Upon the filing of the complaint, the court is required to make an order requiring the defendant to answer within a fixed time. This order must contain such other directions as the court may deem appropriate for the speedy determination of the cause, the protection of the property, or for the disclosure of information pertinent to the prosecution of the cause.' When an answer is filed, the court is directed to fix a time and place for hearing.

Thereafter, a notice 'containing a summary of the order designating the time and place of hearing, as approved by the court, shall be published in a manner directed by the court and shall also be published once a week for three successive weeks in a newspaper of general circulation designated by the court; * * *. Such notice shall direct that any person who may claim to be entitled to the personal property mentioned in the petition (complaint), or to any part thereof or interest therein, shall file with the court his claim in writing at least five days prior to the date fixed in the hearing.'

It is further provided that: 'Any person claiming to be entitled to the personal property described in the petition (complaint), or to any part thereof, or to any interest therein, shall file his claim in the general form of an answer to the petition (complaint), which answer shall set forth in such detail as the court may require why the answering party contends that the property mentioned in the petition (complaint) should not escheat to the State and, if the answering party shall claim any right to or interest in said property, the nature thereof; and the court shall at the time of hearing take such evidence as may be proper, and proceed to determine the cause and enter such final decree (judgment) as shall be equitable and just and in conformity with the provisions of this act. Such decree (judgment) may determine the title to such personal property, and where the court shall find that such personal property, in whole or in part, has escheated to the State the decree (judgment) shall so declare, and such personal property, or so much of it as the court shall decree (adjudge), Shall thereupon escheat to the State.' (Sec. 22.)

The State has not pursued the steps required by this statute to perfect the claim. It has obtained no judgment 'declaring that the property * * * has escheated to the State.' Consequently, it is impossible in this action to enter a judgment directing the administrator to pay the fund to the State Treasurer.

The State contends that we are concerned here only with the question of the existence of the right of escheat and not with the method of enforcing the right. This is too narrow a view of the issue. For example, it is conceivable that in escheat proceedings properly instituted next of kin may appear following the required publication. In this event, the State would not obtain judgment. Non-kindred claimants may file answers and their interests may be paramount to those of the State. In these instances, manifestly a judgment at this time in the interpleader action would not be res adjudicata of the Right to the fund.

Actually, what the court is being asked to decide is that, assuming no claimants appear in the escheat proceedings whose rights are paramount, the State will be entitled to the fund. Our jurisdiction in interpleader actions cannot be invoked on any such hypothetical basis. Therefore, no judgment can or will be entered directing payment to the State. The matter of its claim should be prosecuted in the manner Prescribed by the statute. (19 Am.Jur., Sec. 37, p. 403.)

There remains for disposition the claim of the defendant Cedar Grove. A much more expeditious and effective method of presenting this entire matter would have been for the State to have filed a complaint seeking judgment under the Escheat Act. In such a proceeding, Cedar Grove could have filed an answer claiming the fund and then it would have been possible for the court to enter a judgment finally disposing of the entire matter.

However, since all of the parties seem desirous of having the basic problem resulting from the claim by Cedar Grove determined, this will be done.

As already indicated, Cedar Grove contends that it has a prior right to the fund because of R.S. 3:5--9, N.J.S.A., which provides as follows: 'If the intestate leaves no husband or widow and no known kindred or relatives, the administrator of the estate shall, at the expiration of one year after the intestate's death, put the surplus thereof, after payment of debts and necessary expenses, out at interest and pay the net interest or income thereof annually in the manner following: (a) If the intestate had a legal residence in any municipality such interest shall be paid to the treasurer thereof to and for the use of its poor; (b) If the intestate was a nonresident such interest shall be paid to the treasurer of the municipality in which the intestate died to and for the use of the poor thereof.'

This act provides also that if no person legally entitled to such surplus shall make application therefor within seven years after the intestate's death, such person shall be barred thereafter and the administrator shall then pay the surplus to the treasurer of the municipality which is receiving the income. (Sec. 10.)

The State contends that this enactment was impliedly repealed by R.S. 2:53--15 et seq., N.J.S.A., under which it asserts a right to the fund. R.S. 2:53--16 N.J.S.A. provides: 'If any person, who, at the time of his death, has been or shall have been, the owner of any personal property within this State, and shall have died, or shall die intestate, without heirs or known kindred, capable of inheriting the same, and without leaving a surviving spouse, such personal property, of whatsoever nature the same may be, shall escheat to the State.'

The legislation Cedar Grove stands on was enacted in 1898 (L. 1898, c. 234) and made part of the act relating to the distribution of personal property (R.S. 3:5--1 et seq., N.J.S.A.) Apparently it had been section 9 of the 1877 revision of the Distribution Act but had been repealed. (See notes following R.S. 3:5--9, N.J.S.A. p. 231.)

New Jersey had no general...