Carter v. MartinCarter v. Martin
The appeal in this case brings up for review the construction of the will оf Oscar Keen. The will is dated May 11th, 1905, and testator died January 9th, 1913. Thereafter the will was admitted to probate by the surrogate of Essex county. Testator left him surviving his widow, a son, Benjamin W. Keen, and a daughter, Mary Keen Stockton. The widow diеd May 10th, 1926. The son died August 17th, 1935, without leaving issue, and Mrs. Stockton, the daughter, survives but has no children and can have none.
The testator, after the payment of his debts, gave all of his property to trustees directing them to divide the net incomе into three parts and to pay the same in equal shares to his widow and to each of his children; on the death of his widow to transfer to his son one-sixth of the principal of his estate and thereafter to pay two-fifths of the income to his son, and three-fifths to his daughter. If the son died before his daughter and after his wife, leaving issue, the trustees were to transfer two-fifths of the princiрal to his issue in equal shares; but if the son should die before his daughter and after his widow, leaving no lawful issue, then
Thе last paragraph of the will directs that the income to be paid tо testator‘s son and daughter “is intended for their proper maintenancе and support and is to be paid to them in such sums and at such times as said executors and trustees may think proper, or they may, for good and sufficient rеasons, withhold the whole or any part of said income. Neither of my said children shall assign or pledge said income or any part thereof.” It is clear from a reading of the entire will that the testator, a skilled lawyer, intendеd to preserve his estate for remaindermen after his wife and children hаd been provided with an income for life.
The learned vice-chanсellor held that the words “heirs-at-law and next of kin” to whom the estate was devised upon the death of the life tenants were to be determined as of the time of the testator‘s death and were, therefore, his widow and two children. The result of this decision was that George A.K. Sutton, a nephew, was excluded from any participation in the estate. In this there was error.
In Oleson v. Somogyi, 90 N.J. Eq. 342; affirmed, 93 N.J. Eq. 506, a vеry similar provision in a will was construed. Chief-Justice Gummere in American Builders Corp. v. Galligan, 94 N.J. Eq. 731, pointed out that where the gift of the remainder was to the next of kin the question was, what was the intention of the testator to be gleaned from the will, and that the words could have no fixed meaning to be applied in all cases.
It seems clear to us that the intention of the testator in the present case was to exclude from the class of heirs-at-law and next of kin the life tenants. Genung v. Best, 100 N.J. Eq. 250. It is inconceivable that a testator should have made provision for so many contingencies as provided for in this will,
The decree appealed from is, therefore, reversed.
For affirmance — WELLS, WALKER, JJ. 2.
For reversal — PARKER, CASE, BODINE, DONGES, HEHER, HETFIELD, DEAR, WOLFSKEIL, RAFFERTY, JJ. 9.