114 N.J. Eq. 135 | N.J. Ct. of Ch. | 1933
The bill of complaint herein prays leave for complainant to file in this court its account as executor and trustee, for approval of said account by this court, and for instructions as to its duty as trustee under paragraphs 2 and 3 of the last will and testament of Maria Flora, deceased. By order of June 30th, 1933, complainant was allowed to file its account in this court. Said account was referred to a special master for examination, audit and report. The master's report, filed July 17th, 1933, showed that he examined said account, found same true in all respects, and recommended its approval as stated and filed. No exceptions or objections were filed against said master's report. The account, by order of the court, was duly approved. Paragraph 2 of testatrix's will provides inter alia: "* * * At any time during the lifetime of my said son, should he become incapacitated, because of serious illness or other extraordinary circumstances, and his condition in the judgment of said trustee, requires the use of money in excess of such net income, then and in any such event and during such incapacity of my said son, I authorize and empower said trustee, to use and employ such portion of the corpus of said trust estate, as may be necessary to meet the requirements of my said son, while he is so incapacitated." The proofs herein show that during the summer months of each year subsequent to his mother's death, and for a number of years prior thereto, defendant Joseph Flora engaged in business as a concessionaire at carnivals, circuses and the like. He claims he has been unable to obtain employment throughout the months of the year other than those in which he is engaged as concessionaire aforesaid, and attributes his inability to obtain employment to the general economic depression *137
existing for the past few years. His appearance as a witness in court indicated to me that he is a healthy specimen of manhood — well able to perform any sort of manual labor, and mentally alert. He indicated by his testimony and manner that he was not anxious to work at ordinary business affairs, but was content to continue in the kind of business which he was accustomed to follow during summer months, and indulge in a life of indolence throughout other months of the year. He allows his wife to engage in menial service from which she derives a meagre wage. He conceived the idea that the clause in his mother's will providing that should he become incapacitated, because of serious illnessor other extraordinary circumstances, entitled him, because of his alleged inability to obtain employment during months of the year when he was not following his customary summer months' business, to require the complainant, as trustee of his mother's will, to appropriate to his use for living expenses part of thecorpus of his mother's estate. His claim is untenable. The words incapacitated and incapacity employed by testatrix in paragraph 2 of her will were doubtless intended to relate to physical or mental disability or to disability resulting from infirmity or disease rendering her son incapable of earning his own livelihood. No proof thereof has been presented to the court. In Hudson Trust Company, Executor, c., v. Donald Grant,
I will advise a decree instructing the complainant in accordance with the conclusions aforesaid. *139