On appeal from the Superior Court, Chancery Division, Passaic County.
Michels, Pressler and Bilder. The opinion of the court was delivered by Pressler, J.A.D.
[160 NJSuper Page 598] This appeal raises a novel question involving the application of the descent and distribution provisions of N.J.S.A. 3A:4-5.
Decedent John E. Kremolat died intestate on December 16, 1973, leaving surviving him his maternal grandmother Lillian Herm and a paternal aunt Louise Wood. No direct descendants of his maternal grandparents survived and no direct descendants of his paternal grandparents other than their daughter Louise Wood survived.*fn1 The question, then, is who takes and in what proportion. The grandmother's claim is that she shares equally with the paternal aunt. The paternal aunt claims that she is entitled to a two-thirds share of the estate. The trial judge agreed with the grandmother and we concur.
The controlling statute, N.J.S.A. 3A:4-5, provides in full as follows:
If there be no husband or widow, child or any legal representative of a child, nor a parent, brother or sister, nor a legal representative of any brother or sister, then the intestate's property, real and personal, shall descend and be distributed equally to the next of kindred, in equal degree, of or unto the intestate and their legal representatives. Representatives of ancestors nearest in degree to the decedent shall take to the exclusion of representatives of ancestors more remote in degree.
Judge Clapp, in his treatise, offers the following practical formulation for determining descent and distribution among collaterals under the statute, viz.:
To begin with, we are satisfied that the statutory draftsmanship reflects a clear and definitive legislative intention regarding descent and distribution when the intestate is survived only by collateral descendants. See, e.g., In re Allen , 23 N.J. Super. 229 (Ch. Div. 1952); In re Wolbert, supra; Bridgewater Leasing Corp. v. Wollman , 94 N.J. Super. 28 (App. Div. 1967). And see Clapp, Forward to Title 3A , at IX-XII. The statute, however, is in our view ambiguous in respect of representative takers when the nearest living kinsman is an ancestor more remote than a parent. That is to say, when a right to a share arises by reason of representation, typically it arises because the representative takes in the place of that one of his parents who is in the decedent's bloodline. In that situation, application of the Clapp formula is relatively simple. In the instant situation, which the statute does not directly address, both of the representative's parents are in the decedent's bloodline -- and that, of course, is the significant difference when the nearest living kinsman is an ancestor
rather than a decedent or a collateral relative. Does this "double bloodline" result in the issue taking a double share or does the issue take a single share as the representative of his deceased parents as a single unit?
This ambiguity in the present statute has been definitively clarified by the new Probate Act, L. 1977, c. 412, effective by reason of L. 1978, c. 30, on September 1, 1978. Section 38(d) of that act (to be codified as N.J.S.A. 3A:2A-35) provides in full as follows:
If there is no surviving issue, parent or issue of a parent, but the decedent is survived by one or more grandparents;
(1) Half of the estate passes to the paternal grandparents equally if both survive, or to the surviving paternal grandparent; or if both are deceased and the decedent is survived by maternal grandparents or grandparent, then to the issue of the paternal grandparents, the issue taking equally if they are all of the same degree of kinship to ...