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Matter of Estate of Comly

Decided: March 1, 1966.

IN THE MATTER OF THE ESTATE OF MARY COMLY, DECEASED


On complaint for distribution; on order to show cause.

Kramer, J.c.c.

Kramer

This is a proceeding brought by Helen B. Heughan, an adopted daughter of Captain Samuel P. Comly, Jr., to compel distribution to her of a one-third portion of a trust fund established under the will of Mary Comly, Captain Comly's half-sister. (Captain Comly is referred to in the will merely as "my brother.") The basis of plaintiff's claim is that she is a daughter of Captain Comly within the meaning of the fifth clause of the will of Mary Comly.

The First County National Bank and Trust Company of Woodbury, the substituted trustee, and the two natural children of Captain Comly, Dorothye Comly Crawford and Samuel P. Comly III, are joined as parties defendant. Depositions were taken of plaintiff Helen B. Heughan and Captain Comly, and oral arguments on the order to show cause were heard by the court on December 10, 1965. Briefs have been filed by all parties and all facts necessary to reach a decision are before the court.

The central question in this action is whether an adopted adult may inherit the same as the natural children of the adoptive parent under the will of a third party.

Mary Comly died July 22, 1936. Her will, dated June 23, 1936, was probated in the Gloucester County surrogate's court August 5, 1936. The fifth clause of that will provides:

"FIFTH: I give, devise and bequeath all of the rest, residue and remainder of my estate, of whatsoever kind and wheresoever situate, of which I may die seized or possessed, unto Edmund H. Carpenter of Woodbury, New Jersey in trust, nevertheless to invest reinvest and keep the same invested, and herein order and direct that all income on the said trust fund shall be accumulated and added to the principal of the said trust fund until such time as the child or children of my brother Samuel P. Comly, Jr. shall have graduated from the Woodbury High School, or such high school or other preparatory school as she or they may later attend.

At such time as the child or children of my said brother Samuel P. Comly, Jr., shall have graduated from the high school as herein referred to, then and in that event the accumulation of income upon the said trust fund shall become available for the needs of the child of my said brother should she desire to continue her education or should wish to use the accumulation of income for any business project, and in the event that my said brother has more than one child, that at such time as the oldest of said children shall have graduated from the said high school it is my order that the said accumulation of income shall be divided into equal portions, share and share alike, and the share or portion shall be immediately available to each of the said children as they shall respectively graduate from the high school, and for the purposes herein designated.

At such time as the child or children of my said brother Samuel P. Comly, Jr., shall have graduated from the Woodbury High School, or such other high school or other preparatory school as she or they may attend, and in the event that she or they shall be desirous of continuing her or their education, or desirous of entering into any business project, then and in that event my trustee herein named shall be authorized to expend from the accumulated income of the said trust fund such amount as shall be necessary to defray the expenses of the child or children of my said brother in the furtherance of her or their advanced education, or such amounts as may be necessary in connection with any business project into which she or they may enter.

I order and direct that my said trustee from and after such time as the child of my said brother Samuel P. Comly, Jr. or children, shall be graduated from the Woodbury High School, or such other high school or other preparatory school as she or they may enter, to pay the net income arising from the said trust fund unto the child of my brother, Samuel P. Comly, Jr., if there be but one child, until such time as the

said child shall arrive at the age of thirty-five years, or in the event that there shall be more than one child, then and in that event to pay the income arising from the said trust fund in equal shares, share and share alike, to the children of my said brother, until the youngest of the said children shall arrive at the age of thirty-five years; and in the event that there be but one child, upon the said child arriving at the age of thirty-five years I order and direct that the principal of the said trust fund, together with all accumulation of income thereon, shall be paid to the said child, or in the event that there shall be more than one child of my said brother, then and in that event upon each of the ...


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