Sullivan, Leonard and Carton. The opinion of the court was delivered by Carton, J.A.D.
[117 NJSuper Page 457] This case arises out of the settlement of a death action. Decedent's widow applied for apportionment of the $127,500 settlement award between herself and decedent's posthumously born daughter on the basis of 90% to her and 10% to the child. The child's guardian ad litem had suggested that two-thirds be allocated to the widow and one-third to the child. Rejecting both proposed apportionments, the court ordered that the net balance of about $90,000 be divided equally between the widow and the infant. The court also directed that the counsel fee to be allowed to the attorney be limited to 20% of the infant's share. Plaintiff challenges both rulings on this appeal.
On behalf of the widow it is argued that the court failed to restrict its consideration to the statutory criteria. Specifically, her counsel argues that the court should consider only the following: the support means and support needs of the infant child for food, clothing, education and other necessaries; the availability of other sources of support (one being the financial duty and ability of the surviving parent to contribute to such maintenance); the possibility of using the income generated by the corpus awarded to the infant; and the separate estate and expectancies of the infant. The widow's attorney argues that the monetary figure representing the support needs of the child should be determined by application of these criteria and that the remaining amount of money should go to the widow.
The attorney for the widow also points to the costs of bonding on the amount awarded to the child and the expenses of making application to the court for approval of any expenditures from the child's share required to be used for her support. He urges that the court's determination rested upon improper speculation upon the prospective means of the widow and the possibility that the fund might be dissipated. It would be preferable, he maintains, to place the money in the hands of the mother of the child since there was no showing that she was "a person without gifts, without prudence or without capacity to manage," or "any question about the singleness of the mother in the interest of the child or fidelity of the mother in the interests of the child."
The guardian ad litem's recommended apportionment of about $30,000 to his ward contemplated provision for a college education at an estimated cost of $10,000 and an allowance of about $20,000 to support the child until the time she attained her majority.
The court, in refusing to adopt either suggested method of apportionment, adverted to the statutory formula for distribution prior to the adoption of the 1960 amendment to section 4 of the Death Act. The earlier statute contained no
provision for apportionment among persons entitled to take in the case of intestacy except a stipulation limiting the distribution to dependent beneficiaries where there were both dependent and nondependent beneficiaries. Thus, under the former statutory method of distribution one-third would go to the mother and two-thirds to the child. Commenting that such a distribution would give the child too much and the mother too little, the court said:
Directing that the fund be divided equally between the mother and the child, the court referred to the requirements of the present provision of section 4 of the Death Act and their interpretation in Jurman v. Samuel Braen, Inc. , 47 N.J. 586, 598 (1966). Notwithstanding the fact that the court purported to follow the legislative mandate and the Supreme Court's interpretation in Jurman , plaintiff urges that it "acted arbitrarily and without regard to judicially set guidelines."
The 1960 amendment to section 4 reads as follows:
The amount recovered in proceedings under this chapter shall be for the exclusive benefit of the persons entitled to take any intestate personal property of the decedent, and in the proportions in which they are entitled to take the same. If any of the persons so entitled were dependent on the decedent at his death, they shall take the same as though they were sole persons so entitled, in such proportions, as shall be determined by the court without a jury, and as will result in a fair and equitable apportionment of the amount recovered, among them, taking into account in such determination, but not limited necessarily thereby, the age of the dependents, their physical and mental condition, the necessity or desirability of providing them with educational facilities, their financial condition and the availability to them of other means of support, present and future, and any other relevant factors which will contribute to a
fair and equitable apportionment of the amount recovered . [ N.J.S.A. ...