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Kimley v. Whittaker

Decided: June 26, 1973.


For reversal and remandment -- Chief Justice Weintraub, Justices Jacobs, Proctor, Mountain and Sullivan, and Judge Collester. For affirmance -- None. The opinion of the Court was delivered by Sullivan, J.


This is a will case. Decedent Frances M. Lula died August 30, 1970 leaving a will dated December 2, 1955 wherein she left her entire estate to her husband Walter, but made no provision for alternate disposition in the event he predeceased her. In fact, she survived her husband.*fn1

The operative provisions of decedent's will, which was duly admitted to probate, are as follows:

"FOURTH: I do hereby give unto my husband Walter Anthony Lula all of the property, real, personal and mixed, together with all rights, titles and interest, of which I may die seized or possessed, or have any claim to or interest in without any restriction whatsoever, absolutely and in fee.

FIFTH: For reasons I care not to disclose, I hereby make no provision for my daughter, Mary Palmer, nor my grandchildren and it is my will that my daughter and grandchildren be deprived of any interest whatsoever that I may own at my death.

SIXTH: Those of my heirs not herein mentioned or provided for have been omitted by me with full knowledge thereof."

Decedent was survived by a daughter, Mary Palmer Smith, the appellant herein. She also left several half-brothers and half-sisters, and children of a deceased half-sister. All parties agreed that the bequest to the husband had lapsed and that the estate should be distributed under the statute governing the descent and distribution of intestate property. N.J.S.A. 3A:4-1 et seq. However, the half-brothers and half-sisters contended, and the trial court and Appellate Division held, that paragraph Fifth of decedent's will constituted a strong and unambiguous expression of intent to exclude decedent's daughter and the daughter's children from receiving any part of decedent's estate even though it was distributed as intestate property under the statute. The judgment was that the daughter, who normally would have

received the entire estate under the statute as the sole heir of decedent, was barred from inheriting. Instead, the estate was divided among decedent's half-brothers and half-sisters, the children of a deceased half-sister sharing per stirpes. We granted certification. 62 N.J. 188 (1972).

It is stated as a general rule in this country that an exclusionary provision in a will as to an heir or next-of-kin is not efficacious to bar that heir or next-of-kin from inheriting intestate property of the testator, even though so intended. 4 Page, Wills (Bowe-Parker Rev. 1961) ยง 30.17, p. 115. One reason given for the rule is that since the intestate property passes by law, not by will, the statute, not the testator, controls its distribution.

New Jersey cases dealing with the subject are not uniform in their approach. Some follow the general rule and state that words of exclusion or disinheritance in a will have no effect upon the right of an heir or next-of-kin to take under the statutes of descent and distribution -- that a testator's intention is of no force in such case. Lawes v. Lynch, 7 N.J. Super. 584, 590 (Ch. 1950), aff'd on other grounds 6 N.J. 1 (1950); Maxwell v. Maxwell, 122 N.J. Eq. 247, 254-255 (Ch. 1937); Skellenger's Executors v. Skellenger's Executor, 32 N.J. Eq. 659, 663 (Ch. 1880).

Other New Jersey cases state that the testator's intent would control, but that such intent must be clearly expressed and the words used free from doubt. Graydon's Ex'r v. Graydon, 25 N.J. Eq. 561, 564 (E. & A. 1874); Ward v. Dodd, 41 N.J. Eq. 414, 416 (Ch. 1886); Linell's Administrator v. Linell, 21 N.J. Eq. 81, 83 (Ch. 1870). Cf. Nagle v. Conard, 79 N.J. Eq. 124 (Ch. 1911), aff'd 80 N.J. Eq. 252; 80 N.J. Eq. 253 (E. & A. 1912). However, in none of these cases were the words used found to be free from doubt.

Presumably a testator seeks to avoid intestacy. It is difficult to conceive of a situation where a person executing a will would have in mind possible intestacy and not make some provision to avoid such possibility. In the rare situation ...

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