Bell v. Smalley

• Decision Date: 06 July 1889
• Citation: 18 A. 70,45 N.J.E. 478
• Parties: BELL v. SMALLEY et al.
• Court: New Jersey Court of Chancery

18 A. 70

45 N.J.E. 478

BELL

v. SMALLEY et al.

Court of Chancery of New Jersey.

July 6, 1889.

(Syllabus by the Court.)

On final hearing on bill and answers.

Robert S. Woodruff, for Hannah E. Bell and Amos S. Bell. John R. Emery, for Antoinette Smalley and Charlotte J. Rossell.

VAN FLEET, V. C. The bill in this case was filed for the purpose of having the meaning of two provisions of the will of Charlotte Bell, deceased, judicially settled. The testatrix died in May, 1860. Her will was admitted to probate in April, 1867. By her will the testatrix gave the whole residue of her estate, after the payment of her debts, funeral, and testamentary expenses to her executors, with direction to invest the same, and then, in the language of the will, "to pay the interest and income thereof from time to time, as the same shall be received, to my son Francis E. during his life-time; and in case his wife, Hannah E., should survive him, then to her during her widowhood, in like manner, one-half of the said interest and income; the remaining one-half to be put at interest, and kept in vested at interest, with the interest thereon from time to time accruing; and at the decease of my said son Francis, or in case his said wife should survive him, at her remarriage or decease, then to pay said principal sum, with the increase thereof, and all arrears of interest or income remaining unexpended, to my other then surviving children, and to the heirs of any deceased child, in equal shares, the heirs of any deceased child to take their parent's share in equal parts, if there be more than one." Francis E. Bell, the life-tenant of the whole fund, died in November, 1888, leaving one child, Amos S. Bell. Hannah E. Bell, the person who was the wife of Francis E. when the testatrix died, also survived Francis E., but she was not his wife at the time of his death. She was divorced from him by a decree made by this court on the 9th day of June, 1883, at her instance, for his fault. The decree was absolute, divorcing the parties from the bond of matrimony, dissolving the marriage between them, and freeing and discharging each from the obligations thereof.

Out of this condition of facts two questions arise: First, is Hannah E. Bell, notwithstanding that she has, since the date of the decree of divorce, been a feme sole, and is not now and has never been the widow of Francis E. Bell, deceased, nevertheless entitled to one-half of the income of the fund set apart for the use of Francis E. during his life? and, second, will Amos S. Bell, the son of Francis E., be entitled, by the terms of the bequest, to a share of the fund in question when it is distributed? The solution of the first question depends entirely upon whether it appears, on a careful consideration of all the pertinent provisions of the will, that the testatrix meant that Hannah should only take in case she became the widow of Francis, and only for the period she remained his widow, and not otherwise. If the gift is made to her as an individual, regardless of her matrimonial status or character,—the testatrix meaning that she should take the subject of the gift even if she never became the widow of Francis,—then it is clear that the fund must be held for her benefit, and she must be paid one-half of its income. But if, on the contrary, the gift is conditional, the meaning of the testatrix being that Hannah should have no right to the subject of the gift unless she became the widow of Francis, then it is equally clear that she has no right to any part of the fund in question. That the gift is of the latter kind seems to me to be beyond all question. The words of gift...