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Matter of Estate of Mellett

Decided: December 19, 1969.

IN THE MATTER OF THE ESTATE OF JAMES MELLETT, DECEASED


On order to show cause why letters of administration should not be granted.

Beronio, J.c.c.

Beronio

James Mellett died intestate on June 26, 1969, a resident of Jersey City, New Jersey. He was survived by three brothers, Martin and Daniel, residents of Ireland, and John, currently residing in Bath, New York, and by six children of a deceased sister.

On September 5, 1969 a complaint for letters of administration was filed in the surrogate's court of Hudson County, New Jersey, by Helen Brown and Josephine DeGregory, nieces of decedent, together with renunciations of John Mellett, decedent's brother, Jean Gailor, niece, Thomas Hathaway, nephew, Donald Hathaway, nephew, and Robert Hathaway, nephew, all said nieces and nephews being children of Margaret Mellett Hathaway, a deceased sister of said intestate. Said nieces and nephews are all residents of New York State.

On September 17, 1969 cross-plaintiff Cyril J. McCauley, filed a caveat with the surrogate's court of Hudson County, as attorney in fact for Martin Mellett and Daniel Mellett, brothers of decedent, protesting against the grant of letters of administration to anyone claiming to have equal or prior rights to administration.

Cross-plaintiff Cyril J. McCauley, a resident of New Jersey, is the nominee of Martin and Daniel Mellett, residents of County Mayo, Ireland, by virtue of powers of

attorney executed by them in favor of George W. Cornell, Esq., 225 Broadway, New York City, New York, with power of substitution, and by virtue of substituted powers of attorney executed by said George W. Cornell, Esq., in favor of cross-plaintiff Cyril J. McCauley.

On October 2, 1969, on application of cross-plaintiff Cyril J. McCauley, an order to show cause was issued directing plaintiffs Helen Brown and Josephine DeGregory to show cause why administration should not be granted to said cross-plaintiff.

The issue presented involved the claim to letters of administration by two parties, one the nominee of two brothers of the decedent, and the other two nieces of decedent.

The statute governing this situation is N.J.S.A. 3A:6-4 " Letters of Administration; to whom granted ":

If any person dies intestate, administration of the personal estate of such intestate shall be granted to the surviving spouse of such intestate, if he or she will accept the same, and, if not, or if there be no such person, then to the next of kin of such intestate, or some of them, if they or any of them will accept the same, and, if none of them will accept the same, then to such other proper persons as will accept the same.

The first question to be decided is whether the recipient of a power of attorney from one who is entitled, under the statute, to apply for letters of administration is the nominee of those persons so entitled or is the representative of those persons and entitled to apply for the letters of administration in their name. The cases are clear on this point. When a person who has the right to apply for letters of administration, such as the next of kin, delegates that right to another by a power of attorney, the recipient of the power of attorney is the nominee of those next of kin and is still a stranger to the estate since he will ...


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