Reilly v. Mahoney

• Decision Date: 12 May 1941
• Docket Number: 129/196.
• Citation: 19 A.2d 887
• Parties: REILLY v. MAHONEY et al.
• Court: New Jersey Court of Chancery

19 A.2d 887

REILLY

v. MAHONEY et al.

129/196.

Court of Chancery of New Jersey.

May 12, 1941.

Partition suit by Catherine Reilly against Eleanor Mahoney and others. On complainant's motion to open the decree.

Decree opened.

Milton M. Unger, of Newark, for complainant.

Emanuel Kohn, of Newark, for defendant Mary Ann Kinney Smith.

BIGELOW, Vice Chancellor.

The meritorious question is: Who inherits certain lands of which Katie Shiel died seized? She left two cousins, Catherine Reilly and Mary A. K. Smith, who are of equal degree of consanguinity nearest to decedent and who inherit the estate as tenants in common "unless such inheritance came to the decedent by descent, devise or gift from an ancestor of the decedent, in which case all those not of the blood of such ancestor shall be excluded from such inheritance." R.S. 3:3-8, N.J. S.A. 3:3-8. The decedent acquired her title by devise from her cousin Daniel F. Breslin. Mary A. K. Smith is of the blood of Daniel F. Breslin while Catherine Reilly is not. Hence, Mary inherits the estate to the exclusion of Catherine if the case is within the clause of the statute which I have quoted.

The case is not governed by that clause of the statute, unless Daniel F. Breslin was "an ancestor of the decedent". It is clear that the word "ancestor" is not used in its popular sense, one from whom a person is lineally descended. Wills v. LeMunyon, 90 N.J.Eq. 353, 107 A. 159. The rival contentions of the parties are these: First, that an ancestor is a person whose heir, or one of whose heirs, is the decedent. Had Daniel died intestate, his land would have descended to nephews and nieces and not to Katie Shiel, and so Daniel was not her ancestor under this definition. Second, that ancestor means one from whom the estate would be inheritable by the decedent in the absence of nearer relatives. If the nephews and nieces had died in Daniel's lifetime, then Katie and other cousins would have inherited and hence Daniel was her ancestor under the second definition.

In Ohio, a very similar statute is construed in accordance with the second definition. Hostetler v. Peters, 94 Ohio St. 17, 113 N.E. 656. The court said that the statute was framed in deference to the desire, which was supposed to exist in one who gave an estate to a kinsman, that on the donee's death the estate should be inherited by those of the donor's own blood. To the same effect is Greenlee v. Davis, 19 Ind. 60. But the opposite conclusion has been reached in North Carolina. Burgwyn v. Devereux, 23 N.C. 583;Osborne v. Widenhause, 56 N.C. 238.

Generally the term "ancestor", when used in the law of descents, is the correlative of "heir", so that the ancestor of a person is the one from whom that person inherited an estate. Den ex dem. Pierson v. DeHart, 3 N.J.L. 481, Reprint page 73; Wills v. LeMunyon, 90 N.J.Eq. 353, 107 A. 159; McCarthy v. Marsh, 5 N.Y. 263, 276. The policy of the statute of which the Ohio court spoke, is satisfied by giving to the term "ancestor" its usual technical meaning. When a person gives property to his heir, he may well be supposed to be motivated primarily by blood relationship; but when he passes over his heir and gives to one more distantly related, it is reasonable to believe that he is influenced more by his personal liking for the object of his bounty than by the blood tie, and that he is indifferent who shall take the property after the death of the donee.

I conclude that "ancestor" in the statute under consideration, means a person whose heir or one of whose heirs is the decedent. Catherine Reilly and Mary A. K. Smith inherit equally.

There is a subsidiary question for decision. The cause before me is a partition suit in which Mrs. Reilly is complainant. There was a reference to a master who reported that she had no interest in the property—on the theory that it was an ancestral estate under the statute. On October 22, 1940, a decree was made which confirmed the report, adjudged that complainant had no interest in the land, and that the several defendants owned the whole, and ordered a sale of the property. To this decree complainant consented. A week later, the selling master reported...