105 N.J. Eq. 274 | N.J. Ct. of Ch. | 1929
This bill is filed for the construction of the will and codicils of Joseph G. Ward, deceased. *275
The facts are as follows, and I quote only that portion of the will which seems to me pertinent to the question to be decided:
Joseph G. Ward died April 27th, 1902, leaving a last will and two codicils under the terms of which he gave a part of his estate to his executors in trust to pay the income to his son Joseph G. Ward, Jr., during his lifetime, and provided further that —
"And after the death of the said Joseph G Ward, Jr, until the youngest child shall arrive at the age of twenty-one years, when I direct my said trustees to divide said trust fund equally among such children and their legal representatives; and in the case of the death of my said son, Joseph G. Ward, Jr., without issue, I give said trust fund unto my other children and their legal representatives."
The testator was survived by six children — Aaron C. Ward, William C. Ward, Henry C. Ward, Arthur B. Ward, Joseph G. Ward, Jr., and Florence Ward Young.
Aaron C. Ward died prior to the life tenant, leaving a will by which he appointed his wife, Sylvina H. Ward, the executrix thereof and the sole beneficiary thereunder. He was survived by a son, Harold H. Ward, who died intestate June 7th, 1916, and a son, Walter L. Ward, who died testate on October 5th, 1918.
William C. Ward died prior to the life tenant, leaving a will wherein he appointed his brother, Henry C. Ward, executor, and made his daughter, Janet Morris Ward, now Janet Ward Edwards, the residuary beneficiary. He was survived by his said daughter, Janet Ward Edwards, and a granddaughter, Antoinette Ward, the child of a deceased son.
Henry C. Ward died prior to the life tenant, leaving a will wherein he appointed his wife, Grace Louise Ward, and Harry Durant the executors thereof. He had no children.
Arthur B. Ward and Florence Ward Young both survived the life tenant and are now living.
The life tenant, Joseph G. Ward, died without ever having had issue, on December 19th, 1924.
The first question to be decided is whether the clause above quoted makes the gift vested, contingent, or vested subject *276 to being divested? Joseph G. Ward, Jr., died without issue.
Counsel has called to my attention several cases as follows:
Van Dyke's Admr. v. Vanderpool's Admr.,
"The fact that in the disposition of that portion of the fund now in controversy there is an immediate gift of the fund upon a contingency between the life estate to Maria Van Dyke Gough and the final disposition of the fund does not affect the interest of the last taker or prevent the vesting of the legacy. If such be the apparent intent of the testator the gift in such cases vests subject to be divested upon the happening of the contingency. The fact that the enjoyment is uncertain never interferes with the vesting of an estate. Where the contingency is not in the person but in the event or in the time of the enjoyment, the interest is vested."
In Woodward's Admr. v. Woodward's Exrs.,
In the case of Miers v. Persons,
"In the case sub judice upon the death of the life tenant, without issue, the residuary gift over is to the testator's next of kin. They, therefore, took a vested remainder in the fund, defeasible upon the death of the legatee for life leaving issue. The fact that the enjoyment is uncertain never interfered in the vesting of an estate. When the contingency is not in the person, but in the event or in the time of enjoyment, the interest is vested."
See, also, Fidelity Union Trust Co. v. Green et al.,
I am of the opinion that the gift to testator's other five children vested in them at his death.
Counsel have raised a question as to the effect of the last words in the clause above quoted, to wit: "And their legal representatives." I am of the opinion that this phrase is merely one of limitation.
In the case of Chasy v. Gowdy,
The distribution should be made as follows:
One-fifth to Arthur B. Ward, one fifth to Florence Ward Young, one-fifth to the executor of Aaron C. Ward, one-fifth to the executor of William C. Ward, and one-fifth to the executors of Henry C. Ward.
I will advise a decree accordingly.