[15 NJSuper Page 584] This matter comes before the court on complaint and order to show cause filed by the Hudson Trust Company, executor under the will of Patricia Moloney, deceased. The executor seeks a judgment directing it to pay over to the person or persons entitled a cash balance of $3,468.83 remaining in its hands after payment of the estate's just debts, expenses and legacies, including a one-fourth share of the residue to Annie Moloney Crowley. The undistributed
portion of the estate with which we are concerned in this action consists of three-quarters of the residue which has not been distributed for the reason that three of the four named residuary legatees predeceased the testatrix. As the personal estate of the testatrix was insufficient to satisfy the purposes of her will, the Court of Chancery ordered and confirmed the sale of realty of which she died seized, so that the remaining fund retains for all purposes the character of realty.
The testatrix, Patricia Moloney, died on or about December 10, 1945, leaving a last will dated April 29, 1937, which was duly admitted to probate. Under the will, testatrix, after making provision for several moderate specific and general legacies to non-relatives, bequeathed the residuary of her estate as follows: "to pay to the brothers, John and Michael Moloney, sons of my father's brother, and to sisters of John and Michael, Annie and Bridget, the residue of the estate after all previous bequests are made." Of the four residuary legatees named, only Annie Moloney Crowley survived the testatrix. Bridget Moloney had passed on many years prior to the execution of the will, while John and Michael Moloney died in 1943 and 1944 respectively.
Although diligent inquiry on the part of the executor revealed that John Moloney was survived by his widow, Annie, and that Michael Moloney left an heir in the person of his son, Thomas, it is of no avail, for the residuary gifts cannot be passed on to them as the anti-lapse provisions of R.S. 3:2-18 do not operate, where, as in this case, the relationship of the devisees to the testatrix is as remote as that of first cousins. Brown v. Fidelity Union Trust Co. , 126 N.J. Eq. 406, 9 A. 2 d 311 (Ch. 1939).
In addition to Annie Moloney Crowley and the two heirs of the above-mentioned deceased legatees, it appears that testatrix probably has other relatives living in Ireland and Australia. However, nothing, neither their number nor their degree of kindred, is known of them. It does appear, however, that testatrix has had no contact with any of her kin
for over 20 years preceding her death, and that in all probability she was not even acquainted with any of her living relatives with the exception of the residuary legatees.
The pivotal issue here presented is whether the shares of the residuary devisees who predeceased the testatrix remain, so to speak, in the residue to be taken by the sole surviving residuary devisee, Annie Moloney Crowley, or whether these gifts fall without the residue and pass to testatrix' heirs at law, whoever they may be, under our statutes governing intestate descent.
In early English cases the rule evolved that, while lapsed specific and general legacies fell into the residue to be taken by the residuary legatees, nevertheless, should a portion of the residue itself lapse, it would not remain in the residue but would pass as intestate property. Bagwell v. Dry , 1 P.W. 700; Page v. Page , 2 P.W. 489; Skrymsher v. Northcote , 1 Swanst. 570; Leake v. Robinson , 2 Mer. 392. The reason often assigned for this rule was that lapsed residuary gifts were themselves part of the residue and there could be no "residue of a residue." Such reasoning is obviously more euphonious than enlightening and appears rather to play on words than to point out any real distinction. The reasons for allowing lapsed specific and general legacies to fall into the residue apply with equal force in favor of allowing all the residue to go to the surviving residuary legatees. In the oft-cited Skrymsher v. Northcote, supra , it was held that "a part of the residue of which the disposition fails, will not accrue in augmentation of the remaining parts as a residue of a residue, but instead of resuming the nature of residue, devolves as undisposed of." Hence, another ground frequently given for application of the rule is that since the testator assigned specific portions of the residue to each of the residuary legatees, they therefore could not be allowed to take greater shares than "the intent of the will." It is submitted that this view is altogether too myopic in scope to be considered either sound, satisfactory or convincing. By the very fact of the appointment of general residuary legatees,
the ordinary testator manifests his desire that all his earthly possessions pass to the beneficiaries designated in his will. It is far from being in accord with the realities to presume that a testator would intend his residuary legatees to take a certain proportional share of an undetermined and uncertain residue and no more, and that lapsed portions of this unknown bequest should go to his heirs or next of kin. To the contrary, from the fact that the testator made a will in the first instance, her intention can be construed with far greater certainty to have been to exclude her heirs and next of kin who would have taken her property by operation of law had she died without a will.
The court in In re Gray's Estate , 147 Pa. St. 67, 23 A. 205 (Sup. Ct. 1892), it is felt gave the most accurate reason for the rule when it declared, "the rule is in fact a concession to the set policy of English law, nowhere more severely asserted than in chancery, to keep the devolution of property in the regular channels, to the heirs and next of kin, wherever it can be done." Thus, in their solicitude for the heir at law, the English courts defeated the manifest intention of the vast majority of testators by creating intestacy in situations where ...