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Matter of Estate of Mary P. Allen

Decided: November 21, 1952.

IN THE MATTER OF THE ESTATE OF MARY P. ALLEN, A MENTAL INCOMPETENT, NOW DECEASED


Proctor, J.s.c.

Proctor

This action seeks construction of N.J.S. 3 A:4-5 which became effective January 1, 1952, insofar as it governs the descent and distribution of real and personal property of the estate of Mary P. Allen, deceased.

Mary P. Allen died intestate on March 28, 1952, possessed of real and personal property. The nearest relatives who survived the intestate were first cousins and children and grandchildren of deceased first cousins. The first cousins contend that they take per capita the entire real and personal property of the decedent's estate. On the other hand, the children and grandchildren of the deceased first cousins contend that they take per stirpes, i.e. , the share of the deceased first cousin of whom they are the legal representatives.

The solution of these contentions calls for an interpretation of the statutes of descent and distribution as revised by N.J.S. 3 A:4-5.

Prior to the enactment of the present revision, real property descended, in the absence of certain enumerated near kin as in this case, to the person or persons "of nearest degree of consanguinity to decedent * * * solely or in equal parts as tenants in common * * *." No provision was made for representatives among collaterals beyond issue of brother and sister. R.S. 3:3-8. Under this statute it was held that where a decedent left surviving first cousins and the issue of deceased first cousins, the first cousins took to the exclusion of the issue of deceased first cousins.

Schenck v. Vail , 24 N.J. Eq. 538 (E. & A. 1873). See also Dobbelaar v. Hughes , 109 N.J. Eq. 200 (E. & A. 1931).

The distribution of personalty was governed prior to the revision by R.S. 3:5-6. This statute provided that in the absence of enumerated near kin, as in the present case, the surplusage "shall be distributed equally to the next of kindred, in equal degree, of or unto the intestate and their legal representatives." Under this statute it was held that personalty should be distributed among the living first cousins and, per stirpes , the children of deceased first cousins. Smith v. McDonald , 71 N.J. Eq. 261 (E. & A. 1907); In re Miller's Estate , 103 N.J. Eq. 86 (Prerog. 1928), affirmed 104 N.J. Eq. 491 (E. & A. 1929).

The revision effective January 1, 1952 (N.J.S. 3 A:4-5) provides:

"If there be no husband or widow, child or any legal representative of a child, nor a parent, brother or sister, nor a legal representative of any brother or sister, then the intestate's property, real and personal, shall descend and be distributed equally to the next of kindred, in equal degree, of or unto the intestate and their legal representatives. Representatives of ancestors nearest in degree to the decedent shall take to the exclusion of representatives of ancestors more remote in degree."

Counsel for the living first cousins argues that the term "legal representatives" as used in the above statute has reference to "executors and administrators"; that the words are of limitation and not substitution and that the real and personal property vests as under the rule in the descent of real property before the revision. There appear ten references to one or the other of the following terms: "legal representative," "legal representatives," "legally represent" and "representatives" in N.J.S. 3 A:4-1 to N.J.S. 3 A:4-5. For example, under N.J.S. 3 A:4-2 it is provided that real property shall descend to the intestate's children "and such persons as legally represent any child who may have died * * *." It cannot be doubted that the children or grandchildren of a deceased child are within that designation.

It is a general rule of construction that where a word or phrase occurs more than once in a statute, it should have the same meaning throughout unless there is a clear intention to the contrary. ...


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