Wellbrook v. Ocean County Trust Co.

• Decision Date: 09 February 1931
• Citation: 154 A. 521
• Parties: WELLBROOK v. OCEAN COUNTY TRUST CO.
• Court: New Jersey Supreme Court

154 A. 521

WELLBROOK

v. OCEAN COUNTY TRUST CO.

Supreme Court of New Jersey.

Feb. 9, 1931.

Action by Katherine L. Wellbrook against the Ocean County Trust Company, administrator of the estate of Martin Wellbrook, deceased. On defendant's motion to strike the complaint.

Motion granted.

Jayne & McCloskey, of Lake wood, for plaintiff.

Howard Ewart, of Toms River, for defendants.

HUMP V. LAWRENCE, Circuit Judge as Supreme Court Com'r.

This is a motion to strike the complaint in this suit, on the ground that it does not state a cause of action. The interesting question is whether a widow can, in the circumstances stated, take the entire sum recovered under the Death Act to the exclusion of the next of kin.

The complaint alleges that Martin Wellbrook died intestate on May 28, 1929, leaving a widow (the present plaintiff) and four grown children (by a former marriage) as his next of kin. His death was due to injuries received in an automobile accident. On February 24, 1930, Mrs. Wellbrook took out letters of administration ad prosequendum in accordance with the supplement to the Death Act (P. L. 1917, c. 180, p. 531 [Comp. St. Supp. § 55—10]), and instituted a suit against certain defendants named, alleging that her husband's death was due to their negligence. The complaint filed therein contained the routine and usual allegations required, but stated that he died intestate leaving her (the widow) surviving, without naming the adult children as next of kin, although it did allege in a succeeding paragraph that the widow and next of kin suffered pecuniary loss by reason of his death. An answer was filed, issue joined, and the case came on for trial at the Ocean circuit on September 19, 1930. At the trial, it is stated, plaintiff's evidence as to damages was confined to the pecuniary loss suffered by the widow, for the reason alleged that the surviving next of kin were of full age, were not then and for some years had not been dependent upon decedent or received any financial aid, gain, or advantage whatever from him, and it is accordingly pleaded in the present complaint that they as next of kin did not have at the time of their father's death any reasonable expectation of pecuniary advantage from the continuance of his life. It is further alleged that during the progress of the trial, and after plaintiff's testimony was in, defendants tendered in settlement $l,800, which, in the language of the complaint, "the plaintiff, Katherine L. Wellbrook, as administratrix ad prosequendum, considered adequate and acceptable in compromise of the damages alleged and sought to be recovered from the defendants in said action, whereupon a juror was withdrawn and a mistrial declared."

Subsequently, letters of administration on the estate of the deceased were issued to the defendant trust company, to which as general administrator the sum in question was paid apparently in settlement of the claim, and by which a receipt presumably in the nature of a release was given to the defendants in the action. Thereafter, the general administrator, conceiving that it was so required by law, paid Mrs. Wellbrook, as the widow, $600, or one-third of the amount, but refused to turn over to her the remainder, claiming its legal duty to be to distribute it to the next of kin as provided by the statute in relation to the distribution of personal property left by persons dying intestate.

She accordingly brings this suit against the defendant administrator to recover the remainder of the sum paid in settlement alleging, as indicated, her right to it by reason of the absence of proof at the trial of any financial aid rendered by deceased to the next of kin immediately prior to his death and as a consequence no inference in fact could have been drawn by the jury of any pecuniary loss to them within the recognized rule. It does not appear that they were present at the trial or represented otherwise than by the administratrix ad pros., who evidently regarded her individual interest as solely involved.

It is argued, in behalf of defendant, however, that the complaint does not set forth a cause of action for several reasons: First, that the original suit which resulted in the settlement in question could not have been maintained for the benefit of the widow alone, inasmuch as there were next of kin surviving, even though adult, and since a loss to them was alleged in the complaint; second, that the administratrix ad pros, had no lawful authority to make the settlement; and, third, that the general administrator is not permitted to distribute the money received, whether by settlement or recovery in any other way than as directed by the statute, which is that "the amount recovered in every such action shall be for the exclusive benefit of the widow and next of kin of such deceased, and shall be distributed to such widow and next of kin in the proportions provided by law in relation to the distribution of personal property by persons dying intestate."

There is nothing in the present complaint to show that the defendants paid the money in question for any other purpose than a settlement of the claim laid against them, or that the general administrator, the defendant here, had any knowledge that the sum so received by it was to be regarded as a fund recovered under the Death Act, but not to be distributed pursuant to its direction. It is in fact stated that the suit brought by the administratrix ad prosequendum, although on a complaint alleging a loss to the widow and next of kin, resulted in a mistrial, and there was therefore no finding of the jury that such loss was to her alone and not to all of them. The cause of action attempted to be set up in the complaint does appear to be misconceived, doubtless due to the familiar and long-standing...