92 N.J. Eq. 567 | New York Court of Chancery | 1921
The administrator of this estate shows in his hands a small fund for distribution to the next of kin; that certain of these next of kin have died in foreign states, intestate and without debts, and that no administrators have ever been appointed for either of them. He asks a decree of distribution from this coart
Such a decree could not, of course, be made in the orphans court, but ma3r in a proper case (and, of course, on adequate proofs) be made by this court, having general equity powers.
, The 'distribution of a decedent’s estate is a proceeding in rem, not in personam. Exton v. Zule, 14 N. J. Eq. 501. The decedent’s estate is administered by the court, for the purpose and object of distributing all of the decedent’s estate, in the proper amounts and proportions, oto and among those entitled thereto (whether creditors or next of kin) under the law of decedent’s domicile. When creditors have been paid the court ascertains and determines the persons who are entitled to receive the balance, as next of kin, and in what proportions. The decree of distribution is the formal adjudication and record of that ascertainment and determination.
Where one of the next of kin dies before distribution, his share ordinarily will be decreed to be paid to his executor or administrator. But where he dies intestate, leaving no debts, or his administrator having paid all of his debts, the administrator’s title to such distributive share would obviously be but a mere naked legal title, which he would be .required immediately to transfer to the equitable owner, the next of kin of such deceased next of kin.
Where the next of kin has died intestate, leaving no debts, and no administrator has ever been appointed, the appointment of an administrator for the mere purpose of taking the distributive share and immediately paying it over to the “secondary” next of kin, is unnecessanr and a matter of useless time, trouble and expense—a “useless ceremony,” Fretwell v. Lemore, 52 Ala. 124 (at p. 133), and a court of equity will dispense with such administration and decree distribution directly to the “secondary” next of kin.
See also Re Mullen, 145 N. Y. 98 (at p. 104); Watson v. Byrd, 53 Miss. 480; Marshall v. Crow, 29 Ala. 278; Young v. Kennedy, 95 N. C. 265; also 18 Cyc. 624, and cases there cited.
Of course, in any case of this kind it must be made to appear by full and satisfactory proof that there were no debts, or that if any debts existed they have been paid, and that no transfer or succession taxes are leviable (or, if such be leviable, what they are, so that the decree may provide for their payment).