Cent. Hanover Bank & Trust Co. v. Helme

• Decision Date: 18 February 1937
• Citation: 190 A. 53
• Parties: CENTRAL HANOVER BANK & TRUST CO. et al. v. HELME et al.
• Court: New Jersey Court of Chancery

190 A. 53

CENTRAL HANOVER BANK & TRUST CO. et al.

v. HELME et al.

Court of Chancery of New Jersey.

Feb. 18, 1937.

[Copyrighted material omitted.]

Syllabus by the Court.

1. In construing a will, the predominant idea of the testator's mind, if apparent, is heeded as against all doubtful and conflicting provisions which might of themselves defeat it.

2. The rule against perpetuities is a product of the common law. It maintains in this state. It is not a rule of interpretation or construction; it is one of property.

3. The rule of perpetuities, restated, is as follows: "No interest is good unless it must vest, if at all, not later than twenty-one years after some life in being at the creation of the interest."

4. The rule of perpetuities is directed solely against the unlawful postponement of the vesting of estates, and is in no way applicable to their possession or enjoyment.

5. The donee of the power takes from the donor, the testator, from the date of his death.

6. Ordinarily, "issue" involves grandchildren and the descendants of a more remote degree, as well as children. But, when the word "issue" is used in a will, a more confined meaning is given to it if it appears from the testamentary disposition that the testator used the term in a more restricted, or particular sense.

7. The courts have restricted the word "issue" to issue per stirpes, rather than to issue per capita. In case of doubt about the distribution to be made either per capita or per stirpes, the courts award to issue per stirpes.

8. Per stirpes means by or according to stock or root; by right of representation; a term of the civil law, extensively used in the modern English and American law, to denote that mode of the distribution and descent of intestates' estates, where the parties entitled to take the shares which their stocks (such as a father) if living, would have taken.

9. A remainder subject to a power is not necessarily vested; for, if the remainder be limited to unascertained persons or on an express condition precedent other than the mere nonexercise of the power, it would be contingent.

10. The remainder will be held contingent if it appears that the testator intended that the members of the class were to be ascertained at the termination of the particular estate or time of distribution and that no right was to vest in any except those of the class in existence at that time.

11. The court's function is to construe a will, not to make or rewrite one for the testator under the guise of construction, even to do equity or to accomplish a more equitable division of the estate, or for the purpose of making it more liberal and just, or even though interested parties are agreeable thereto.

12. The donee, by certain paragraphs of his father's will, was vested with an exclusive power to appoint, limit, or exclude any of his (the donee's) children. He exercised the power by giving his son a life estate with remainder over to the son's children. Held, the donee's power to appoint did not extend beyond his own children; and the extension of the appointment to his son's children, who are the greatgrandchildren of the donor, violates the rule against perpetuities and is therefore void.

13. When a part only of a gift is invalid by reason of the rule against perpetuities and the invalid limitation is an essential part of the general scheme of the will or gift, the several parts of the devise or the grant are treated as inseparable and the whole is adjudged void.

14. If a part of the testator's general scheme is that an estate shall be kept entire for an unlawful period, no part of the scheme can be sustained, and the estate to which the void provisions relate vests immediately in the heir.

Suit by the Central Hanover Bank & Trust Company and others, as executors of the will of the late John W. Herbert, Jr., the sole surviving trustee under the last will and testament of George W. Helme, deceased, substituted complainants, against Mary T. B. Helme and others, as executors of and trustees under the last will and testament of George A. Helme, deceased, and others.

Decree in accordance with opinion.

Carl M. Herbert, of Manasquan, for substituted complainants.

Herbert J. Hannoch (of Hannoch & Lasser), of Newark, for defendants George W. Helme, Jr., and Joseph Ely Helme.

James D. Carpenter, Jr. (of McDermott, Enright & Carpenter), of Jersey City, for defendants Mary T. B. Helme, James B. Helme, Everett J. Esselstyn, and Central Hanover Bank & Trust Co.

Samuel M. Coombs, Jr., of Jersey City, for defendants Margaret H. Marston and James B. Helme.

Robert J. Bain (of Collins & Corbin), of Jersey City, for defendant John Warne Herbert, 3d.

John J. Fallon, of Hoboken, for defendants Central Hanover Bank & Trust Co. and George Frankenthaler.

EGAN, Vice Chancellor.

George W. Helme died June 13, 1893. The substituted complainants herein seek: (1) A construction of the provisions of his last will and testament; and (2) of the effect of the purported exercise of the power of appointment therein contained, by the last will and testament and codicil of his son George A. Helme, who died April 29, 1931; and (3) instructions as to the proper distribution of the funds in their hands. George W. Helme, above named, for convenience of identity will, hereinafter, be referred to as George W. Helme (I); and George A. Helme, above named, will, hereinafter, be referred to as George A. Helme (II), and his son George W. Helme, hereinafter mentioned, will be referred to as George W. Helme (III).

The original bill in this cause was filed by John W. Herbert, Jr., the sole surviving trustee under the last will and testament of the said George W. Helme (I), deceased. He died on August 26, 1936, before any action was taken on the bill. In his last will and testament, which was admitted to probate by the New Jersey Prerogative Court, he named the substituted complainants as his executors. Because of Herbert's death, the suit abated, but by order made April 9, 1936, it was revived. These complainants filed a supplement to the bill of complaint which sets forth matters arising subsequently.

The paragraphs of the will of George W. Helme (I) which are of chief concern are eleventh and thirteenth. Paragraph eleventh reads as follows: "Eleventh: I give, devise and bequeath to my son, George A. Helme, five hundred shares of the capital stock of The George W. Helme Company. To have and to hold the same to him during his natural life, and upon his death, leaving issue him surviving, I give and devise the same in fee simple to such issue, or to such of them and in such shares and estates as my said son may by last will and testament direct, limit and appoint, and in default of such limitations and appointment to such issue per stirpes, and in case of his death, without leaving issue him surviving I give and devise the same to his nephews and nieces, and the issue of such of them as may be dead, in such shares and estates as my said son may by last will and testament direct, limit and appoint, and in default of such appointment to such nephews and nieces and the issue of such as may be dead, equally per stirpes."

That part of paragraph thirteenth of the said will, so far as it concerns the present suit, reads as follows:

"Thirteenth: I give, devise and bequeath all the rest, residue and remainder of my estate * * * to my trustees * * * upon the trust following, viz: to receive the rents, issues and profits * * * and to apply the net income * * * as follows: * * * to the use of my son George A. Helme, for life, one-third part thereof, and upon the death of * * * my son, leaving a child or children, or the issue of a deceased child or children * * * him surviving, to convey and pay over one-third part of the said trust property and estate to such child or children, or to such of them and in such estates, shares and proportions as my * * * son so dying shall, by last will and testament direct, limit and appoint, and in default of such appointment, then to such child or children and the issue of a deceased child or children equally per stirpes, and in case of the death of either of my daughters, or son without leaving issue her or him surviving, then to convey and pay over the said one-third part to her or his nephews and nieces, and the issue of such of them as may be dead, in such shares, estate and properties as my daughter or son so dying shall by last will and testament direct, limit and appoint, and in default of such limitation and appointment, then to such nephews and nieces, and the issue of such as may be dead equally per stirpes.

"In case either of my daughters or son shall die before me, leaving issue me surviving, the share herein devised in trust for the use of such daughter or son, I give and devise to such issue, and if any of the children of such daughters or son shall be under age at the time of my decease, the share coming to each of such children shall be payable upon his or her arriving at that age, and in case of his or her death under that age, his or her share shall go to his or her issue, if any, and if none, to his or her surviving brothers and sisters and the issue of such as may be dead per stirpes, and in the meantime my said trustees shall retain and continue to hold the shares of my daughter or son so dying, or so much thereof as shall belong to children under age, and keep the same invested and accumulate the income for the benefit of such child or children, until they shall severally arrive at the age of twenty-one years, or sooner die.

"And in case either of my daughters or son shall die before me without leaving issue me surviving, the share herein devised in trust for her or him shall remain in the trust estate for the benefit of my surviving children and their issue, to be held in trust for them as aforesaid, and their shares shall be increased and this will shall be read and construed accordingly."

"In construing a will, the...