Aitken v. Sharp

• Decision Date: 03 January 1922
• Docket Number: No. 46/676.,46/676.
• Citation: 115 A. 912
• Parties: AITKEN v. SHARP et al.
• Court: New Jersey Court of Chancery

115 A. 912

AITKEN

v. SHARP et al.

No. 46/676.

Court of Chancery of New Jersey.

Jan. 3, 1922.

(Syllabus by the Court.)

Bill by William B. Aitken, as executor of Amy Edwards, deceased, for whom were substituted Frank Brewster and Robert D. Brewer, administrators c. t. a., against Arthur B. Sharp, as executor, and others, to construe the will. Will construed.

Vredenburgh, Wall & Carey, of Jersey City, and David B. Simpson, of New York City, for complainants.

McCarter & English, of Newark, for Marie F. Brewster and Laura L. Sayles.

Peter Hofstra, of Paterson, and A. T. Sieker, of New York City, for Mary Ostrander.

Coult & Smith, of Newark, and A. Leslie Harwood, Jr., and L. D. Jennings, both of Boston, Mass., for J. W. Brewer, Helen F. Brewer, Millard Sayles Brewer, Fannie R. Brewer, and Augusta Brewer.

Thomas F. McCran, Atty. Gen., for State Comptroller.

GRIFFIN, V. C. The bill in this case is filed for the construction of the will of Amy Edwards, who died a resident of Elizabeth, N. J., on June 12, 1918, leaving a last will and testament dated December 31, 1912.

In the first paragraph of her will she directs the payment of all her just debts and funeral expenses. In the second paragraph she gives certain general and specific legacies, one of which requires consideration. It is as follows:

"I also give and bequeath to said Mary Morris Ostrander and Laura J. Edwards ten Middlesex Water Company bonds, of the par value of one thousand dollars each."

The remaining paragraphs, all of which require interpretation, are as follows:

"Third. All of the rest, residue and remainder of my estate, real and personal, wheresoever situate, thus including lapsed legacies, I wish divided into four equal portions.

"Fourth. I give a one-twelfth part of one of such portions unto John Wilmon Brewer, a one-twelfth part of one of such portions unto Augusta Brewer and a one-twelfth part of one of such portions unto Helen Francis Brewer, the part given to any of the three persons last mentioned dying before me, to go to their issue, if any, and, if none, to the survivor or survivors, and I give a three-twelfths part of such portion to Willard Sayles Brewer and a three-twelfths part of such portion to Fanny R. Brewer, and the remaining three-twelfths part of such portion to Helen Blackmar.

"Fifth. I give a fourth part of another of such portions to John C. Sharp, a fourth part to Arthur R. Sharp, a fourth part to Helen Sharp, and the remaining fourth part of such portion, thus including any additions thereto which may result from the provisions of this will, I give, devise and bequeath unto my executor hereinafter mentioned to hold in trust and pay over the net income thereof to Marie Francoer Brewster during her lifetime, and at her death or if she die before me, then at my death to pay the principal to her children if any, or if she die leaving no issue, then I direct my executor to pay the said remaining fourth part of said portion to John C. Sharp, Arthur R. Sharp and Helen Sharp, share and share alike, and their shares, if they be then dead, shall go to their children or issue surviving, or if none, then to the survivors or children of those dying leaving issue.

"Sixth. I give each of the two remaining fourth portions to my executor hereinafter mentioned, to be held by him in trust, to pay over the net income of one of such portions to Henry Sayles during his lifetime, and to pay over the net income of the other portion to Laura Lamed Sayles during her lifetime, and upon the death of either, such one portion, and upon the death of both, the two portions thus including accumulations and unpaid income, shall be paid to them to whom I have directed the first and second portions to be given, or to such as may then be entitled to receive the same in accordance with the provisions hereof respecting said portions.

"Lastly. I hereby nominate, constitute and appoint as the executor of this my last will and testament, William B. Aitken, or New York City, hereby giving him full power to make sale of any real estate whereof I may die seized, at public or private sale and to make sale of any personal property, and upon such terms and at such times as he may think best, and it is my will that my said executor shall not be required to give bonds for the faithful performance of the duties herein imposed on him. It is my wish that no sale of property be held upon the homestead premises in the city of Elizabeth, New Jersey."

1. The first question of doubt arises on the gift of ten Middlesex Water Company bonds. The testatrix never owned water bonds of that name, but for some years prior to the making of the will and continuously down to the date of her death owned then Piscataway Water Company bonds of the par value of $1,000 each. There is nothing in the language of the will which indicated her intention to bequeath bonds which she then owned, but, on the contrary, she gave such bonds generally. Such language makes the legacy general, and not specific. In re U. S. Fidelity & Guaranty Co., 90 N. J. Eq. 254, 106 Atl. 364; Blair v. Scribner, 67 N. J. Eq. 583, 60 Atl. 211; Mecum v. Stoughton, 81 N. J. Eq. 319, 86 Atl. 52.

2. The next question to be considered is whether the gifts and devises in the fourth fifth, and sixth paragraphs are to a class. The cases generally state the rule to be that, where an aggregate fund is given to several persons nominatim, to be divided between them in equal shares, If one dies before the testator, his shares lapse; the gift being to them as individuals, and not as a class. Clark v. Morehous, 74 N. J. Eq. 658, 70 Atl. 307. In this latter case Vice Chancellor Howell cites with approval the opinion of Judge O'Brien in Re Russell, 168 N. Y. 169, 61 N. E. 166, who said:

"A gift to a class has been defined by a recent decision of this court to be a gift of an aggregate sum to a body of persons uncertain in number at the time of the gift, to be ascertained at a future time, who are all to take in equal or some other definite proportions, the share of each being dependent for its amount upon the actual number."

But it is urged that the evidence offered without objection indicates that the testatrix made division of her residue among four classes of her relatives, who were first and second cousins, viz. in the fourth paragraph provision is made for the Brewer branch, in the fifth paragraph for the Sharp branch, and in the sixth paragraph for two branches of the Sayles family, and in her division she gave the equivalent of one-fourth of one-fourth (or one-sixteenth) to the first cousins, and one-twelfth of one-fourth (or 1/48) to the second cousins, and from this it is argued that by separating her relatives in this manner she intended to constitute them as classes and give to them as such. Tills, however, is not sufficient to justify a finding that the testatrix gave to the persons mentioned in each paragraph as a class. Dildine v. Dildine, 32 N. J. Eq. 78.

My conclusion therefore is that the parties mentioned in the fourth, fifth, and sixth paragraphs did not take as classes, and therefore the share of Helen Blackmar did not pass to the remaining persons in the fourth paragraph.

3. 4. Helen Blackmar, mentioned in fourth paragraph, died in the lifetime of the testatrix. The question presented is: What disposition should be made of her share?

It is contended on the part of certain legatees that, as the legacy and devise is contained in the residue, on the death of the beneficiary her share passed, the personalty to the next of kin, and the real estate to the heirs at law; the opposite contention being, in effect, that on her death it continued in the residue by reason of the language, contained in the third paragraph, "thus including lapsed legacies."

The rule of law is that a general residuary bequest does not include any part of the residue itself, which fails (Ward v. Dodd, 41 N. J. Eq. 414, 5 Atl. 650; Hawkins on Wills, p. 42; Garthwaite's Ex'rs v. Lewis, 25 N. J. Eq. 351; Humble v. Shore, 7 Hare, 247); and, were it not for the words in the third paragraph "thus including lapsed legacies," the share of Helen Blackmar would not pass as residue, but would be distributable among the next of kin and heirs at law Notwithstanding this language, which evidences an intention that all legacies which might lapse or fail, including those in the residue, should form part of her residue, and be distributed accordingly, yet in Humble v. Shore, supra, a contrary result was reached. In that case the testatrix, by her codicil, directed that her trustees should stand possessed of certain property upon certain trusts, and that the same ultimately should sink into the residue of her estate and be disposed of accordingly. Vice Chancellor Wigram held that such language was not sufficient to continue this residue in the residue, but that it went to the next of kin and heirs at law. This case was followed in a. number of other English cases, with the judges, however, protesting against its sense and avoiding its effect wherever possible, until 1893, when in Re Palmer (Palmer v. Answorth) 3 Ch. Div. 369, it was overruled, Lindley, L. J., saying:

"But when a testator revokes a gift of a share of the residue, alters the gift, and, subject to that alteration, directs that the share fall again into his residue, he does not mean that such share shall be treated as ultimately out of the residue, but as ultimately in it, and to go as part of it to those to whom he leaves it,"

Lopes, L. J., in the same case, speaking of Humble v. Shore, said:

"It is difficult to understand the principle of the decision or the reasoning by which it was arrived at;"

And, after giving several illustrations, he said:

"A more obvious and palpable attempt to defeat the intention of the testator it would be difficult to imagine."

In Re Allan (Dow v. Cassaigne) 1 Ch. D. 276 (1903), where the residuary estate was divided into four shares, one of...