122 N.J. Eq. 262 | N.J. Ct. of Ch. | 1937
The will of Oscar Keen, deceased, dated January 7th, 1907, is presented for construction. The pertinent provisions are found in the third item, which reads as follows:
"I give, devise and bequeath unto my said Executors and Trustees, and to the survivor of them, all of my property, real, personal and mixed (except such as is hereinafter mentioned) in trust, however, for the following uses and purposes, that is to say:
"a. They are during the life time of my wife Elizabeth D. Keen to divide the net income of my estate unto three equal parts, and pay one-third thereof to my said wife so long as she shall live; one-third thereof to my son Benjamin Williamson Keen and one-third thereof to my daughter Mary Hampton Stockton.
"b. On the death of my said wife they are to pay over and transfer to my said son Benjamin one-sixth of the principal of my estate, and thereafter during the joint lives of my children they are to pay to my said son Benjamin two-fifths of the income of the remaining principal of my estate and to my daughter Mary three-fifths of said income.
"c. On the death, before my said daughter and after my said wife, of my said son Benjamin leaving lawful issue, or lawful issue born to him after his death, they are to pay over and transfer two-fifths of the then principal of my estate to such lawful issue in equal shares; but if he should so die before my said daughter and after my said wife leaving no lawful issue as aforesaid, they are to pay the entire net income of my estate to my said daughter Mary so long as she shall live, and after her death they are to pay over and convey the entire principal of my estate to my heirs-at-law and next of kin.
"d. On the death of my said daughter before my said son and after the death of my said wife, they are to pay over and transfer to my said son Benjamin three-fifths of the then principal of my estate; but if at the death of my said daughter he should be already deceased leaving lawful issue or lawful issue born to him after his death, they are to pay over and transfer the remaining three-fifths of the principal of my estate to such lawful issue in equal shares; or if at the death of my said daughter he shall be so deceased, leaving no lawful issue as aforesaid, they are to pay over and transfer the then entire principal of my estate to my heirs-at-law and next of kin."
Here follow similar provisions, in the event either child should predecease Mrs. Keen. Then this paragraph:
"The income hereinbefore directed to be paid by my said Executors and Trustees to my said son and daughter is intended for their proper maintenance 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 reasons, withhold the whole or *265 any part of said income. Neither of my said children shall assign or pledge said income or any part thereof, nor are my said executors and trustees to recognize any assignment or other disposition thereof by either of my children."
Testator died in 1913, survived by his widow, Elizabeth D. Keen, and two children, Benjamin W. Keen and Mary Keen Stockton. His nearest of kin, excluding his widow and children, was his nephew, George A.K. Sutton. Benjamin, about thirty-four years old, was unmarried. Mrs. Stockton was childless and as a result of a severe illness, was incapable of bearing children. This fact was known to her father when he made his will.
Mrs. Keen died in 1928, leaving a will by which she gave her entire estate to her sister, Mary T.C. Huston. Benjamin, still unmarried, died August 17th, 1935, leaving a will under which the residuary legatee is All Souls' Hospital of Morristown. So the last clauses of paragraph "c" and "d" of the will become effective.
Mrs. Stockton, All Souls' Hospital and the state tax commissioner contend that on testator's death, his son and daughter each took a vested remainder in one-half of five-sixths of the estate, subject to divestment if Benjamin should die leaving issue. As Benjamin died without leaving issue, the event on which defeasance depended cannot happen. The other one-sixth part of the estate is that which was payable to Benjamin and was paid to him upon the death of Mrs. Keen.
Mrs. Huston takes the same position except that she says that Mrs. Keen should be included as one of the next of kin under the statute and as a remainderman.
Mr. Sutton claims the whole estate, subject to the life tenancy of Mrs. Stockton. He argues that the next of kin and heirs-at-law should be determined by excluding the widow and children of testator.
Although the remainder was primarily given to the issue of Benjamin, the gift over vested immediately on testator's death, defeasible upon demise of the life tenant leaving issue, for the contingency was not in the person, but in the event. Miers v.Parsons,
The difficulty arises because the life tenants also constituted the class to whom the remainder was given. A similar situation was considered carefully by Vice-Chancellor Emery in Tuttle v.Woolworth,
In Oleson v. Somogyi,
Miers v. Parsons, supra, deals with the will of the late Mr. Justice Alfred Reed, who bequeathed income to his only child, for life and, on her death without issue, the principal sum "to my next of kin surviving." Chancellor Walker, without discussion, held that the remainder vested at testator's death in those persons who would have been his next of kin if he had left no descendants.
The next case is American Builders Corp. v. Galligan,
The latest decision in this series is Genung v. Best,
Cases from other states are collected in notes in13 A.L.R. 615; 20 Id. 356; 30 Id. 915, and 61 Id. 1011.
I deduce from our authorities that the rule stated in Tuttle v. Woolworth is still the law of New Jersey, but that when the life tenants are the sole next of kin or heirs of testator, they will be excluded from the gift in remainder if indications that such was testator's intention are found in the will, even though the indications are not clear.
The will of Oscar Keen contains not one of the indications of testator's intention which in Oleson v. Somogyi and Genung v. Best, supra, took the wills there construed out of the general rule. Nor have counsel for Mr. Sutton discovered other evidence of intention which should have that effect. They call attention to the expression "then principal of my estate," recurring in the will and argue that the word "then" is used as an adverb of time and postpones ascertainment of the class of beneficiaries until the period to which it refers. But as I read the will, the "then principal" is the balance remaining after payment of one-sixth to Benjamin. It has not the significance which counsel attribute to it. The corpus in question vested at Mr. Keen's death, in his heirs-at-law and next of kin," not excluding the life tenants. I reach my conclusion with the greater confidence because Mr. Keen was an able lawyer. Tuttle v. Woolworth was decided six years before the date of his will and settled the title to real estate located close to his home. It is most likely that he was familiar with this case. On the other hand, Oleson v. Somogyi and following decisions which distinguish Tuttle v. Woolworth came after his death.
Was Mrs. Keen included among the remaindermen? The limitation to heirs and next of kin means that Mr. Keen, upon failure of his special purpose to leave his estate to Benjamin's issue, desired, as stated in Tuttle v. Woolworth, supra, "that he should be considered as making no provisions of his own about the disposition of his estate but as expressly leaving that disposition to be made by the laws as if he had *270
died intestate." The estate is all personalty. Mr. Justice Dixon for the court of errors and appeals in Leavitt v. Dunn,
Mrs. Stockton points out that she is the life beneficiary of the entire estate, as well as the remainderman of one-third thereof. She prays that the trustees be directed to turn over this third of the corpus to her. Where an estate is given to trustees to collect and pay over the income to a life tenant and on his death to deliver the corpus to remaindermen, the trust is usually a mere device for preserving the estate, during the life tenancy, for the benefit of the remaindermen. In such case, if the life interest and the remainder become vested indefeasibly in the same person, the trust will be terminated and the beneficial owner will be given possession of the estate. Brooks
v. Davis,
The last paragraph of Mr. Keen's will quoted above states that the income directed to be paid to his son and daughter "is intended for their proper maintenance 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 reasons, withhold the whole or any part of said income. Neither of my said children shall assign or pledge said income or any part thereof." Clearly discretion is given to the trustees. The testator intended not only to *272 preserve the corpus of the estate for the remaindermen but also that his daughter — as well as his son — should be assured of an income for her support as long as she might live. The safeguards which he devised for her would be destroyed by granting her prayer. The trustees must retain the corpus for the purposes set forth in the will.
Let there be a decree in accordance with these views.