Bottomley v. Bottomley

• Decision Date: 07 January 1944
• Docket Number: 149/285.
• Citation: 35 A.2d 475
• Parties: BOTTOMLEY et al v. BOTTOMLEY et al.
• Court: New Jersey Court of Chancery

35 A.2d 475

BOTTOMLEY et al

v.BOTTOMLEY et al.

149/285.

Court of Chancery of New Jersey.

Jan. 7, 1944.

COPYRIGHT MATERIAL OMITTED.

Suit by Harold S. Bottomley and another, executors under the last will and testament of Samuel Grainger Croft, deceased, against Howland W. Bottomley, coexecutor and cotrustee under the last will and testament of Gordon Frederick Bottomley, deceased, and others, for construction of the will of complainants' testator.

Will construed, and decree in accordance with opinion.

1. The privilege of making a will is conferred by the law, and the exercise of the privilege must be submitted to the law.

2. The intention of the testator is the law of his will; in seeking that intention caution must be used in attributing to the phraseology employed by testator the technical meaning which has been fastened upon the same phraseology in the decisions of other cases.

3. When the testator's intention has been ascertained, if it is not violative of any rule of law, it will prevail over technical rules and words in their technical or even ordinary meaning.

4. The chancellor has power to effectuate the manifest intent of a testator by inserting omitted words, by altering the collocation of sentences, or even by reading his will directly contrary to its primary signification; that power is exercised whenever necessary to prevent the ascertained intention of a testator from being defeated by a mistaken use of language.

5. Technical words will, ordinarily, be construed in their technical sense where the draftsman knew their meaning; on the other hand, too great emphasis will not be placed on the precise meaning of technical legal language where the will is the product of one not familiar with legal terms, or not trained in their use.

6. Since regard must be had to the knowledge of the law possessed by the scrivener of a will, in cases involving the construction of technical terms, the court may receive and utilize extrinsic evidence to identify the draftsman and to show his knowledge or lack of knowledge with respect to technical terms employed.

7. Evidence of the conditions and circumstances surrounding a testator is properly admitted, to place the court insofar as that may be possible, in the situation of the testator at the time he executed his will.

8. A will should not be so construed as to impute to the testator a purpose to die intestate, or partially so, if such a construction can be avoided; the presumption of the law is against intestacy, and this presumption is particularly strong where the subject of the gift is a residuary estate.

9. In the instant case the testator, a bachelor, was associated in a business partnership at the time of his death with two nephews; another nephew, their brother, was a partner until his death; he predeceased testator. Testator was an executor and trustee of the estate of the deceased nephew, and showed an especial interest in the welfare of the nephew's widow and children who were also the chief beneficiaries of the trust created under the nephew's will, which trust the testator herein was actively engaged in administering at the time he executed his will. Testator bequeathed his residuary estate to the two surviving nephews and ‘the estate of’ the deceased nephew. On bill to construe, held: that the words ‘the estate of [the deceased nephew]’ described the trust created by the nephew and that this gift was intended to go to the nephew's trustees to be administered in accordance with the provisions of the nephew's will.

10. Although a will impose a penalty of forfeiture upon contesting beneficiaries, the clear weight of the authorities exempts from forfeiture a beneficiary who participates, in invitum, in proceedings for construction only, even though he advocate a construction which, by virtue of the law, would invalidate the will. In every case, however, the conduct of the litigant must be weighed in the light of the language of the testamentary provision.

Robert J. Tait Paul, of Camden, for complainants.

Walter Carson, of Camden, for defendants Howland W. Bottomley and others.

Herbert J. Koehler, of Camden (Louis B. LeDuc, of Camden, of counsel), for defendants John W. Croft, Jr., and others.

WOODRUFF, Vice Chancellor.

This is an executors' suit for construction of a will. Samuel G. Croft, the testator, died July 28, 1941, leaving an estate valued at more than five million dollars. Taxes and specific bequests have been paid and $2,372,651.30 remains to be distributed under the residuary clause of the will. It reads: ‘Thirteenth. All the balance of my estate, I bequeath unto my three nephews, Harold Sidney Bottomley, Estate of Gordon Frederick Bottomley and Howland William Bottomley, in the following proportions; Harold Sidney Bottomley to have four-tenths; Estate of Gordon Frederick Bottomley and Howland William Bottomley, three-tenths each, with the hope that these men will always act with credit throughout their business careers in continuing the business established by my father and will prove their appreciation of the chance that was given them.’ (Italicized to indicate words, the interpretation of which is questioned.)

The testator, at the time of his death, was the senior partner of Howland Croft Sons & Co., a partnership engaged in the manufacture of worsted yarns in the City of Camden. That firm was founded in 1880 by testator's father, Howland Croft. In 1889 the partnership consisted of Howland Croft and his three sons, John W. Croft, George H. Croft and Samuel G. Croft, George H. Croft retired in December, 1902, and John W. Croft in December, 1916; the testator continued to be associated with his father until his father's death.

Testator was a bachelor. He was 67 years of age at the time of his death. Harold, Gordon and Howland Bottomley, named in the residuary clause of his will, are the sons of his sister, Miranda C. Bottomley. They were also his proteges; he dictated the place and the character of their education, had them each serve an apprenticeship in his mill, and as each attained his majority gave him $10,000 and the opportunity to purchase a junior partnership; Harold was specially trained to manage the mill, Gordon to be the outside business representative and salesman for the firm, and Howland to purchase raw materials; Harold became a junior partner August 3, 1908; Gordon, December 17, 1909; and Howland, January 17, 1912; at the suggestion of the testator, each made a trip around the world before assuming the position for which he had been educated and trained; each then became an assistant to the testator. When the testator died in 1941 Harold and Howland succeeded to the control and management of the business; Gordon had died, an active partner in the business, November 30, 1934. A fourth nephew of the testator, the defendant John W. Croft, Jr., was given an opportunity to become interested in the business; he served part of an apprenticeship, but quit to engage in the real estate business.

Gordon F. Bottomley was survived by his wife, the defendant Constance S. Bottomley, and by seven minor children. The youngest child was only a few weeks old at the time of his father's death. Gordon devised his home to his wife and created a testamentary trust for her benefit and that of his seven minor children. He directed that all of the income from his estate be paid to his widow until the first of his children attained the age of twenty-one years, and that thereafter the income from one-third of his estate be paid to her for life. At her death he directed that his estate be divided among his children. Children, he provided, were to share and share alike, the shares of the sons to be paid to them as they successively attained the age of twenty-one years and the shares of the daughters to be held for them, they to receive the interest thereon for life and to have power of disposal thereof by will.

Gordon appointed his uncle, the testator, and his brothers Harold and Howland, his executors and trustees. They duly qualified and took over the administration of his estate. The testator was the most active in the discharge of their duties and he exhibited a deep personal interest in the welfare of Gordon's family and the future of Gordon's sons. Gordon had said in his will: ‘It is my wish and direction that any of my sons who may so desire shall have the opportunity to enter the business of Howland Croft Sons & Company, Camden, New Jersey.’ When Gordon's eldest child, Gordon, Junior, graduated from high school he entered the business college in Philadelphia which had been attended by the testator and by his father and his uncles. He then became an apprentice in the mill. He and his brother James were working there when they entered the armed forces of the United States for the present war.

The partnership founded by Howland Croft has existed for more than sixty years by oral understanding. When Gordon died, a partnership policy, previously adopted, was followed: The value of Gordon's interest was fixed as its book value on the date of his death, and the obligation to pay over to Gordon's executors the amount so determined was recognized; in lieu of the payment of further earnings upon Gordon's capital interest, four per cent interest per annum was allowed, to be paid until satisfaction of the debt. Almost immediately after the death of Gordon, the testator directed Mr. Porter to ‘draw those checks and pay the interest monthly to the Estate of Gordon F. Bottomley.’ One-twelfth of the annual interest was then paid each month to Gordon's widow; partnership checks were made payable to ‘Estate of Gordon F. Bottomley’ or ‘Estate of G. F. Bottomley’; they were received by the executors and deposited in their executors' account, and the money was then paid to Gordon's widow in accordance with the terms of Gordon's will.

The testator visited Gordon's family ‘frequently’ after Gordon's death. Each Christmas, until his death, the...