Harkness v. ZelleyHarkness v. Zelley
“Item 40th — As to all the rest, rеsidue and remainder of my estate, real, personal or mixеd, of whatsoever nature or kind or wheresoever situate at the time of my decease, I do hereby give, devise and bequеath unto Alice M. Harkness, my cousin, assistant, and present housekеeper absolutely for her sole use and benefit forevеr, she having been a faithful, interested and efficient assistant and caretaker of me and of my business, thus doing all that lies in my power to provide a home for her after I am gone, with the request аnd understanding that she will provide by a last will and testament that should she decease before my brother Charles E. Zelley that he shall hаve the income from what may remain of my estate for and during the term of his natural life, and that at the death of both of them the rеmainder to be equally divided among my legal heirs share and share alike; and with the further request and understanding that if my brother Charles E. Zellеy shall be left alone in this world, that he shall be admitted into our home and household or into her home and household, if I should be deceased, said homes and households to be mutually maintained and cared for by all, and each and all to mutually care for each and one another, thus trying to provide care аnd shelter for all three of us, none having any family, feeling that our brоther J. Howard Zelley has a family to care for him.”
Charles E. Zelley is now deecased; Alice M. Harkness is still alive.
It will be observed thаt the language employed by testator in first defining the gift to his cousin. Alice M. Harkness, is in terms creative of an absolute estate, and that testator then proceeds to make provision fоr a gift over to others at her death. This gift over testator seeks to accomplish through a “request and understanding” that the first taker will make a will in favor of others; and it will also be observed that the provision in favor of others relates only to what should remаin of the property so bequeathed and devised at the dеcease of the first taker.
It has long been a fixed rule of construction in this state, as to testamentary gifts either absolute in fоrm or in form
The present case cannot be said tо fall within the rules declared in Kent v. Armstrong, 6 N.J. Eq. 637; there, no power of disposal was given except by will. Nor can the gift over be sustained as a precatory trust under the authorities collected in Deacon v. Cobson, 83 N.J. Eq. 122, since here the gift over relates only to what may remain of the property at the death of the first taker.
The authorities defining the rules above referred to are adequately collected by Vice-Chancellor Buchanan in Gaston v. Ford (New Jersey Chancery), 99 N.J. Eq. 592.