Camden Safe Deposit & Trust Co. v. Guerin

• Decision Date: 18 November 1918
• Citation: 89 N.J.Eq. 556,105 A. 189
• Parties: CAMDEN SAFE DEPOSIT & TRUST CO. v. GUERIN et al.
• Court: New Jersey Supreme Court

105 A. 189

89 N.J.Eq. 556

CAMDEN SAFE DEPOSIT & TRUST CO.

v. GUERIN et al.

Court of Errors and Appeals of New Jersey.

Nov. 18, 1918.

(Syllabus by the Court.)

Appeal from Court of Chancery.

Bill by the Camden Safe Deposit & Trust Company against Eliza Guerin and others. From a decree of the Court of Chancery (87 N.J.Eq. 72, 99 Atl. 105), construing the will of Joseph O. Cuthbert, deceased, defendants appeal. Affirmed, with modifications.

Harvey F. Carr and Louis B. Le Duc, both of Camden, for appellants.

Grover C. Richman and William D. Lippincott, both of Camden, for appellee.

BERGEN, J. This appeal presents the question whether the Vice Chancellor, who advised the decree appealed from, properly construed the last will and testament of Joseph O. Cuthbert. The will vests in trustees, for whom the complainant has been lawfully substituted, the title to the corpus of the residue of the testator's estate, subject to a trust to pay the income for life in equal fifth parts to his children, Mary C. Gillespie, Joseph, Allen, and Henry C., and one-tenth each to his granddaughter Mary Rue and her mother, the widow of testator's son Anthony who predeceased the testator, the share of the income given to Mary Rue's mother to be paid, after her death, to Mary Rue. The daughter-in-law is now dead, and her daughter Mary thus entitled to be paid the whole income from that share. The trust further provides that upon the death of any son, daughter, or of the granddaughter Mary Rue, leaving a widow or husband surviving, one-third of the income given to either shall be paid to such surviving widow or husband, and the remaining two-thirds to the child or children of any decedent son, daughter, or his granddaughter Mary Rue. The gift of the income was in each case for life only.

The trust also provided that—

"Upon the death of all my sons and daughter, and granddaughter Mary Rue above named, and their surviving husbands and wives, and also after the death of all the children of the first generation of my said sons, daughter and granddaughter, Mary Rue, the trust hereby created shall cease, and the trustees of this my will, or their successors in office, shall part, divide and distribute all the residue of the capital of my estate to and among the lawful grandchildren of my said sons, daughter and granddaughter Mary Rue absolutely, in the shares and proportions above directed respecting the income clear of further trust, per stirpes and not per capita."

At the time of the death of the testator, his daughter, three sons, and his granddaughter, Mary C. Rue, were his only heirs at law. All of testator's children are now dead, and all, except Joseph, left issue. The granddaughter Mary is still living, but her mother is dead.

The will of the testator refers to the disposition of real estate as well as personal property and it does not appear from the record whether the real has been converted into personal estate; but, as the Vice Chancellor said, this is immaterial, for the estate, whether real or personal, of which the testator died intestate, descends to the same persons. In addition to this, the will directs the trustees to sell all of the real estate at such time as they may deem most conducive to the best interests of his children and grandchildren, and, after paying certain incuimbrances, to invest the surplus to be held upon the trusts attempted to be created; the plain intention of the testator being, to be gathered from other parts of the will, that the real estate should be converted into money before distribution. In such cases real estate must be considered as converted into money from the death of the testator, notwithstanding there be a discretion as to time of sale. Wurt's Ex'rs v. Page. 19 N.J.Eq. 365; Crane v. Bolles, 49 N.J.Eq. 373, 24 Atl. 237. So, in either event, whether actually converted or not, the residue is to be disposed of as personalty, no claim being made by any of the parties to elect to take the land if not sold, if that could be done in view of the continuance of some parts of the trust. Two questions are raised by this appeal, one relating to the period of distribution of the whole or part of the corpus, and the other to the distribution of income.

The Vice Chancellor held that, as the gift of the corpus of the estate could not take effect during the period of the lives of persons in being and 21 years after, it was in violation of the rule relating to perpetuities and void, and, there being no disposition of the corpus, it descended to the testator's heirs at law, subject to the operation of such of the provisions of the trust as were lawful. This result is correct and is not contested by any of the parties interested in this litigation.

So we have a gift of a fund to be held in trust to pay the income for life to the children and a grandchild of the settler, and thereafter to their children for life, the latter being the owners of the corpus by inheritance for want of the legality of the gift over of the fund, subject to the right, in some cases, to the widow, or surviving husband of a deceased child of the testator, to have for life one-third of the income which a deceased child, or the granddaughter of the testator, was given for life.

The first question to be determined...