115 N.J. Eq. 102 | N.J. Ct. of Ch. | 1934
Mary Hearn Greims died on May 27th, 1927, leaving a last will and testament (which will hereinafter be referred to as will), copy of which is attached to and made part of the bill of complaint, marked Exhibit A, and leaving her surviving her husband, Herbert Spencer Greims (to whom she was married subsequent to April 20th, 1877), and an adopted son, Gerard Greims. No child was born to testatrix and her aforesaid husband. The defendants Gerard Greims, Jr., and Joan Greims, children of her adopted son, Gerard Greims, and Vera L. Greims, his wife, are minors. George Fawcett, one of the defendants herein, was named guardian ad litem for said minors. At the time of her death testatrix was seized and possessed of real and personal property of the value of nearly three million dollars located in the States of Connecticut, New York and New Jersey. On June 8th, 1927, her will was duly probated by the court of probate for the district of Ridgefield, county of Fairfield, State of Connecticut, which was the place of her domicile. Bankers Trust Company of New York, and her aforesaid husband, were nominated and appointed in and by her aforesaid will as executors thereof and trustees thereunder, and they qualified and assumed their duties as such. Testatrix's husband subsequently resigned as trustee; his resignation was filed and recorded in the court of probate March 6th, 1930. A copy thereof is attached to and made part of the bill of complaint, marked Exhibit B. An exemplified copy of the probate record in the Connecticut court was recorded in the surrogate's office of Hudson county for the purpose of enabling the executors and trustees to make title to and sell testatrix's lands and real estate situate in Weehawken, New Jersey. Testatrix in and by paragraph three of her aforesaid will devised to her husband certain lands and real estate situate in the township of Weehawken aforesaid and it is with respect thereto complainants' bill relates. Under section 5055 of the general statutes of Connecticut (in so far as provisions thereof are applicable to the matter sub judice as manifested by the proofs herein) testatrix's husband, upon her death, became legally entitled to the use, for life, of one-third *105
in value of all the property, real and personal, legally or equitably owned by the testatrix at the time of her death, after the payment of all debts and charges against her estate; such third to be set out by distributors appointed by the court of probate, in any property, real or personal or both, according to the judgment of such distributors; and his right to such third could not be defeated by any testamentary disposition of testatrix's property to other parties. Under the aforesaid statute it is provided that where (as in the case sub judice) a wife, by will, devised or bequeathed a portion of her property to her surviving husband, such testamentary devise or bequest shall be taken and accepted by him in lieu of his statutory right aforesaid, unless the contrary is expressly stated in the will, or clearly appears therein; but in such case the surviving husband is entitled to his election whether to accept the provisions of his wife's will or take such share of her property as he is statutorily entitled to, such election to be made in writing, signed by him, and lodged with the court of probate before which the wife's estate is for settlement, within two months after the expiration of the time limited for the exhibition of claims against her estate; said statute further provides that if in a case such as sub judice the husband fails to exercise his aforesaid right of election he is regarded as having accepted the provisions of his wife's will, and debarred of such share of his wife's property as provided by the statute aforesaid. Certain provisos are contained in the aforesaid statute which are inapplicable to the matter sub judice and therefore not considered or referred to herein. Testatrix's husband within the time allowed by law therefor appropriately elected to have such share of her estate as legally provided for his benefit by said statute and application was duly made to the probate court for the appointment of distributors to set out such part of her estate as he by virtue of such election was statutorily entitled to. The supreme court of errors of Connecticut, as appears by an opinion thereof reported in
"The doctrine, which is purely equitable, and was originally derived from the civil law, finds its most frequent illustration in the case of wills, the principle being that one shall not take any beneficial interest under a will, and at the same time set up any right or claim of his own, even if legal and well founded, which would defeat or in any way prevent the full effect and operation of every part of the will."
In 2 Story Eq. Jur. (5th ed.) § 1075, it is said:
"Election, * * * is the obligation imposed upon a party to chose between two inconsistent or alternative rights or claims, in cases, where there is a clear intention of the person, from whom he derives one, that he should not enjoy both. Every case of election, therefore, presupposes a plurality of gifts or rights, with an intention, express or implied, of the party, who has a right to control one or both, that one should be a substitute for the other. The party, who is to take, has a choice; but he cannot enjoy the benefits of both." *109
And in section 1077 it is said:
"* * * In short, courts of equity, in such cases, adopt the rational exposition of the will, that there is an implied condition, that he, who accepts a benefit under the instrument, shall adopt the whole, conforming to all its provisions, and renouncing every right inconsistent with it."
And such doctrine was adopted by the courts of New Jersey. InStephenson v. Brown,
"The provisions herein made for the benefit of my said husband are made and are to be accepted by him in lieu of his estate by the curtesy and of all rights of curtesy in the real property of which I shall die seized or possessed, and also in lieu of all income from my estate and of the use of any part of such estate to which income or use he shall or may be entitled under the laws of the State of Connecticut or otherwise." *110
It will be observed that the testatrix expressly refers hereinabove to "the real property of which I shall die seized or possessed." She does not say — the real property of which I shall die seized or possessed in Connecticut. It will be observed also that the testatrix provides by said paragraph of her will that the provisions therein made for the benefit of her husband are made and are to be accepted by him in lieu of his estate by the curtesy and of all rights of curtesy in the real property of which she shall die seized or possessed, and also in lieu of all income from her estate and of the use of any part of such estate to which income or use he shall or may be entitled under the laws of the State of Connecticut or otherwise. (Italics mine.) The use of the words or otherwise are very significant in my judgment, and evidence that the testatrix had in mind her property situated outside of the State of Connecticut. The election made by testatrix's husband under the Connecticut statute is binding upon him everywhere. In re Miner,
In behalf of testatrix's husband it is urged that if, because of his having elected to accept the benefits conferred upon him by the Connecticut statute, he thereby renounced the devise to him in paragraph three of his wife's will, nevertheless, the lands and real estate so devised to him should not be held to fall into her residuary estate, but that it should be held herein that she died intestate thereof and that title thereto vested in him under the New Jersey law of descent. Such holding cannot be countenanced; it would be inequitable to permit testatrix's husband to acquire any benefit or gain any advantage under her will in view of his renunciation thereof by means of his having exercised his election to take in lieu of the testamentary provisions made for his benefit in said will such share of testatrix's property as he was entitled to under the statutory provisions aforesaid. To permit him to benefit by such circumvention as attempted to be resorted to by him in the casesub judice would be inequitable. In 28 R.C.L. 227 § 189, it is said: "When a will is executed the reasonable and natural presumption is that the testator intends to dispose of his entire estate. There is no presumption of an intention to die intestate as to any part of his estate when the words used by the testator will clearly carry *114
the whole. Therefore, in the construction of doubtful clauses in a will, that interpretation is to be adopted if possible which avoids a partial intestacy, unless it clearly appears that the testator intended to die intestate as to part of his property. The presumption against an intestacy is particularly strong where the subject of the gift is the residuary estate. An intestacy is a dernier ressort in the construction of wills, and it has been said that the abhorrence of courts to intestacy under a will may be likened to the abhorrence of nature to a vacuum. * * *." See, also, Baldwin v. Baldwin,
I will advise a decree instructing the complainants that the testatrix's husband is not entitled to avail himself of the devise of the lands and real estate situate in New Jersey, mentioned in paragraph three of her will; that such lands and real estate must be regarded as part of testatrix's residuary estate, and pass to her executors and trustees to sell and dispose of subject to the terms and provisions of the ninth, tenth and twelfth paragraphs of her will.
If counsel cannot agree upon the terms and form of the decree to be entered herein, in accordance with the conclusions hereinabove expressed, the terms and form thereof will be settled by the court on application by the solicitors of the complainants, upon appropriate notice thereof to the solicitors of the defendants. *115