94 N.J. Eq. 268 | New York Court of Chancery | 1923
This is a bill for the construction of the will of the late Henry Graves of Orange. He died August 29th and his will was probated September 10th, 1906. The testator left him surviving Harriet Isabella Graves, his widow, and Henry Graves, Jr., Edward H. Graves, George Coe Graves and Daisy S. Smith, his children and only heirs-at-law and next of kin. Henry Graves, Jr., has had four children, as follows: Henry Graves 3d, Duncan Graves, Gwendolyn Graves and George Coe Graves 2d. Henry Graves 3d died since the death of his grandfather, having left his widow, Margaret Dickson Graves, and Mary Dickson Graves, Florence Barbara Graves and Henry Dickson Graves, his children and only next of kin,him surviving. He left a last will and testament appointing his father, Hemy Graves, Jr., executor,- which will has been probated. Edward H. Graves has one child, a daughter, Jean Stevenson Graves, born after the decease of her grandfather. George Coe Graves has no children. Daisy B. Golf (now
The executors of Henry Graves, deceased, the complainants, filed their final account as executors in June, 1907,. and thereafter a decree allowing the account as stated was made and filed in the orphans court of Essex county, and the balance of the corpus and income of the testator’s estate thereupon passed to themselves as trustees under decedent’s will. See Lyon v. Bird, 79 N. J. Eq. 157. All of the persons interested in the will of the testator are parties to this suit.
Henry Graves, the testator, after making several specific bequests, expressed the wish that the principal of his estate should remain intact without depletion or distribution for the benefit of his grandchildren and their families, and to that end, in item 4, he devised and bequeathed all the residue and remainder of his estate, both real and personal, unto his sons Henry Graves, Jr.,, and George Coe Graves, their heirs and assigns forever in trust, nevertheless, inter alia:
“o. All increase in shares of stock, special and stock dividends, and other increase in value or accumulations to principal, to be added to principal, the regular yearly income or dividends only to be used for distribution in manner thereinafter provided, d. Out of income of the principal the trustees to pay testator’s wife during her natural life, in lieu of dower or further interest in his real estate or claim upon personalty the sum of $20,000 per year. e. To divide the remaining income into as many parts as there may then be children and grandchildren surviving the .testator and pay one of such parts unto each of his children and grandchildren, during their natural life. f. In the event of there being other children of his children—-that is, grandchildren, born subsequent to testator’s decease, the annual income to be divided into such proportions that each child and grandchild shall receive equal shares, g. In the event of the decease of any grandchild leaving lawful issue the share of the income which would have gone to the deceased grandchild to be paid to such issue in equal shares. A. Upon the death of his last surviving grandchild to divide 'the principal of his estate, with all accumulations, to and< among the issue of grandchildren—that is, among great-grandchildren, share and share alike, the issue of any deceased grandchild to receive the share its parent would have received if living.”
Questions of doubt and difficulty having arisen under the will, complainants, Henry Graves, Jr., and George Coe
On behalf of the infant defendants, who are interested in sustaining the trust, application is made for the admission of extrinsic evidence to aid the court in interpreting the will. The evidence proffered consists of an affidavit made by a member of the bar, who drew the will and advised the testator in
In Farnum v. Pennsylvania Co. for Insurance, &c., 87 N. J. Eq. 108, Vice-Chancellor Baches, following a long line of decisions, held that parol evidence, of a testator’s declarations to show his intention or understanding of his will different from its legal significance, is incompetent. This case was affirmed on his opinion. Ibid. 652. My judgment is that the proffered testimony residing in -the affidavit is not evidence on this issue, and the affidavit will, therefore, be excluded.
The rule against perpetuities, which is not the creature of statute in our state, but has come to us from the English law, is stated in Theob. Wills 597, as follows:
“A limitation toy way of executory devise is void as too remote, if it is not to take effect until after the determination of one or more lives in being -and upon the expiration of twenty-one years afterwards, as a term in gross and without reference to the infancy of any person who is to take under such limitation, or of any other person, allowance for gestation being made only in those cases where it actually exists. Thellusson v. Woodford, 4 Ves. Jr. 221; 11 Ves. Jr. 112; Cadell v. Palmer, 1 Cl. & F. 372.”
It is argued that this rule has uot been authoritatively adopted in this state, although it is conceded that it has been applied many times in this court. This may be a distinction, but, if so, it is one without a difference. To apply the rule
In re Smisson, supra, it was held that where the vesting of the fee is not postponed beyond the duration of specified lives in being at the time of the death of the testator, any limitations of the estate that may be made to take effect in the meantime are not within the rule because they cannot, by any possibility, postpone a vesting of the fee beyond a period permitted by it.
It is the possibility that the period covered by a life or lives in being and twenty-one years thereafter may be exceeded, and not the certainty or even probability that it will be exceeded, in a given trust, which calls for the application of the rule. See Stout v. Stout, 44 N. J. Eq. 479; Hewitt v. Green, 77 N. J. Eq. 345; In re Smisson, 79 N. J. Eq. 233; Camden Safe Deposit and Trust Co. v. Guerin, 89 N. J. Eq. 556; Kates, Trustee, v. Walker, 82 N. J. L. 157.
In Stout v. Stout, supra, Vice-Chancellor Bird applied the rule, and observed (at p. 486) that it rendered inoperative that portion of the gift which intended that the grandchildren of the -testator’s daughter, Mrs. Dunham, should have the principal, the interest of which was given to her for life. Mrs. Dunham had one child, and although she was fifty years old, the vice-chancellor remarked that the possibility of childbirth is not removed at the age of fifty. This was a correct statement of the law. And it has recently been decided in this court and in the court of errors and appeals that in theory and contemplation of law it is possible for a woman
Now, in this case four children and five grandchildren were living at -testator’s death, and one grandchild and -three great-grandchildren were born after his decease. Other grandchildren and great-grandchildren may yet be born. The will directs that in the event of there being other children of testator’s children, namely, grandchildren, born subsequent to his death, his trustees are to- divide the annual income in such proportions that each child and grandchild shall receive equal shares. Then, upon the death of the last surviving grandchild, to divide the principal, with all accumulations, to and among the issue of his grandchildren, that is, among his great-grandchildren, share and share alike, &c. It is perfectly obvious that other grandchildren may still be bom and they, upon birth, would be entitled to share in the income, which would cease only upon -the death of the last survivor of them, which might be beyond twenty-one years after the death of all the class living at the time when the will took effect. This probability, or at least possibility, renders void the trust so far as distribution to great-grandchildren at the time of the -death of the last surviving grandchild is concerned, which entails intestacy as to the corpus; but the question still further is: Is the estate distributable now or at a later period, and if later, when ?
And now a word as to- what construction should be given to the word “surviving” in the clause “last surviving grandchild.” To my mind, the meaning of the testator is perfectly clear. He, of course, well knew -that grandchildren might be born to him, so to speak, after his death. That he contemplated it and made provision for them is apparent. In item 4, after providing in paragraph d for the payment of the annuity -to- his wife, he provides in paragraph e that the remaining income shall be divided into as many parts
In Stout v. Stout, Hewitt v. Green and Kates, Trustee, v. Walker, ubi supra, it was held that trusts for grandchildren born after the death of the testators, which might postpone
It is conceded by all that the trust for testator’s widow of $20,000 per year is valid; and so it is. Therefore, a sufficient part of the estate will have to be held until her death. The next of kin are presently entitled to distribution of the balance of the corpus under the statute of distribution, and will be entitled to the balance—that is, the portion held to produce the widow’s annuity, on her death.
Now, as to the question concerning all increase in shares of stock, special and stock dividends, and other increase in value or accumulations to principal, and the regular yearly income or dividends. This is important only as it may be involved in the accounting.
In my opinion the meaning of the testator as to accumulations on the one hand, and payment out of income on the other, is plain. A sioclc dividend is not in the ordinary sense a dividend, the latter being a cash distribution of profits to stockholders as income from their investments. A stock dividend is an increase in the number of shares declared out of profits, the increased number representing exactly the same property as was represented by the smaller number of shares. Kaufman v. Charlottesville W. M. Co., 93 Va. 673. The testator, therefore, meant that stock dividends should be added to the principal. He as clearly meant that special—that is, extraordinary, dividends should be added to principal. The words “and other increase in value and accumulations to principal” must, I think, be considered as meaning no more than stock or special dividends. As the words are general in character and specify no particular sort of value or accumulation, they must be limited to the specific kind of increase, namely, stock and special dividends, and can have no application to regular 7/earlv income or dividends. And this view is strengthened by his direction that regular yearly fincóme or dividends only are to be distributed.
Among the assets of testator’s estate are shares of stock of the Delaware, Lackawanna and Western Railroad Company and the Atlas Portland Cement Company. On July 1st, 1909,
In leaving the questions, I desire to express my regret that I have been unable to reach the conclusion that this trust in favor of grandchildren and great-grandchildren, so clearly expressed by the testator, must be defeated because of.'the . inexorable operation of a rule of construction firmly established in the law. And it is' all the more regrettable because it compels a decision against the interests of infant defendants.- But, after all, infants’ rights are not superior to those of adults, and the rights of adults are not to be defeated because the adversary parties are infants. In re Shreve, 87 N. J. Eq. 7; affirmed, Ibid. 710. Where an infant defendant is before the court represented by a guardian, as he always must be, the court protects his interests and, in a sense, represents him. And where doubtful and difficult questions are involved, the court will appoint counsel to represent the guardian. Bunting v. Bunting, 87 N. J. Eq. 20. This course was taken
Upon this whole matter I am constrained to hold that the trust attempted to be created by the testator is void because it violates the rule against perpetuities; that, consequently, the corpus of the estate vested in the children and next of kin of the testator upon his decease, and that they are entitled to enjoy it in possession, subject to a trust fund to be carved out of it sufficient in amount to produce the widow’s'annuity during the term of her natural life; and the trustees must account. Directions for the accounting will be given on motion and on notice, if such course becomes necessary.