Price, Sullivan and Foley. The opinion of the court was delivered by Sullivan, J.A.D.
This appeal is in an action for the construction of the will of Joseph E. Valentine, who died on April 3, 1959, a resident of Livingston, New Jersey. Said will was admitted to probate by the Surrogate of Essex County on May 19, 1959 and, the executor named therein having renounced, plaintiff was duly appointed administrator with the will annexed. Plaintiff is also one of the residuary legatees and devisees named in paragraph Fourth (b) of the will.
The trial court ruled that Joseph E. Valentine, hereinafter called testator, had died intestate as to approximately
one-half of his estate and that the same passed under the statute of descent and distribution to defendant Edith D. McCormick, his only child. Plaintiff appeals.
Testator married Edith Leonora Veal in 1916. One child was born of that marriage, Edith D. McCormick, mentioned in the will as Edith Doris Valentine, and who is hereinafter referred to as the defendant. In 1919 testator's wife divorced him and was awarded custody of the defendant. At no time after the divorce did testator avail himself of his right of visitation to his own child and defendant visited her father on only one occasion. The mother remarried in 1928 and the defendant continued to reside with her mother at all times and until the defendant's own marriage to John McCormick.
In 1927 testator married Muriel H. Skinner. No children were born of this marriage. In 1952 testator and his wife executed mutual wills. The wife had been gainfully employed, except for a two-year leave of absence, as a public school teacher, from 1919 to the date of her death. She died in February 1958 and testator, pursuant to the terms of her will, inherited her entire estate.
Testator died April 3, 1959. The pertinent provisions of his will are as follows:
"SECOND: I give and bequeath to my daughter EDITH DORIS VALENTINE, ONE DOLLAR ($1.00).
THIRD: I give, devise and bequeath all the rest of my property, real, personal or mixed, and wheresoever situate, and including all property over which I may have the power of disposition by will or otherwise, to my beloved wife, MURIEL S. VALENTINE, to her, her heirs and assigns forever.
FOURTH: Should my beloved wife predecease me, or should we die in a common disaster or under circumstances in which it is difficult to determine who died first, or if my beloved wife should die within thirty days after my death, then, in any of those events, I give, devise and bequeath said rest, residue and remainder as follows:
(a) To my sister, ELIZABETH E. VALENTINE, ONE DOLLAR ($1.00);
(b) One-half of all of the balance, share and share alike, to WILLIAM A. VALENTINE, JR., ...