Chemical Bank & Trust Co. of N.Y. v. Godfrey

• Decision Date: 30 December 1953
• Docket Number: No. C--2321,C--2321
• Citation: 102 A.2d 108,29 N.J.Super. 226
• Parties: CHEMICAL BANK & TRUST CO. OF NEW YORK et al. v. GODFREY et al.
• Court: New Jersey Superior Court

Page 226

29 N.J.Super. 226

102 A.2d 108

CHEMICAL BANK & TRUST CO. OF NEW YORK et al. v. GODFREY et al.

No. C--2321.

Superior Court of New Jersey

Chancery Division.

Dec. 30, 1953.

Winthrop Watson, Passaic, attorney for plaintiffs.

Lester J. Kramer, Teaneck, attorney for defendant Adelaide M. Godfrey.

Hugh C. Spernow, Paterson, attorney for defendants Ruth H. Holman and others, individually and as class representatives of descendants of first cousins.

Evans, Hand & Evans, Paterson, attorneys for defendants Ida L. Padgett and others, individually and as class representatives of cousins of more remote degree.

Seufert & Elmore, Englewood, attorneys for defendants Daniel Gilliam Bogert and others, individual descendants of first cousins.

Whiting, Moore & Phillips, Newark, attorneys for defendants Board of National Missions of Presbyterian Church in United States of America and others.

William Dickson Cunningham, Rahway, attorney for defendants Salvation Army and Home for Old Men and Aged Couples.

McCarter, English & Studer, Newark, attorneys for defendants Memorial Center for Cancer and Allied Diseases and others.

Collester & Johnson, Clifton, attorneys for defendant Association for Relief of Respectable, Aged and Indigent Females of City of New York.

Henry B. Twombly, Summit, attorney for defendant Berkshire Industrial Farm.

Mendon Morrill, Paterson, attorney for defendants Margaret Demarest Holland and others, individually and as class representatives of descendants of first cousins, not of testator's blood, but whose relationship depends upon adoption.

GRIMSHAW, J.S.C.

Guilliam Bogert Demarest, a lifelong resident of Bergen County, died on March 17, 1952 leaving an estate of the approximate value of $2,800,000. The plaintiffs, as executors, being in doubt as to their duty, especially with reference to paragraph 5 of the will, seek the court's instructions.

The provision concerning which doubt has arisen is as follows:

'Fifth: I give and bequeath the sum of One Thousand Dollars ($1,000.00) each to my cousins living at my death, of whatever degree of consanguinity, excepting those two are mentioned as primary legatees in Paragraph Seven (7) of this my Last Will and Testament.'

Another question concerning the payment of taxes having been settled, it is not considered.

On its face the fifth paragraph of the will would be void for lack of certainty. An authority on anthropology estimated that within the space of six generations Mr. Demarest's cousins would number 19,000,000. And, if the Biblical story of creation is to be taken literally, all persons in the world are related. Obviously, the testator, a successful and intelligent businessman, intended no such result. So it becomes the court's problem to seek the testator's intention within the framework of the will, if that can be accomplished without doing violence to the language used in that document.

It is elementary that the court, in construing a will, must seek to determine the intention of the testator. But that intention must be collected from the words of the will. The question is not what the testator meant to express, but what the words of the will do express, read in relation to the surrounding circumstances and the canons in aid of interpretation. In re Armour's Estate, 11 N.J. 257, 94 A.2d 286 (1953).

The simplest solution to the problem would be to give to the language used by the testator in the fifth paragraph of the will its literal meaning and declare the bequest void for lack of certainty. But the duty of the court goes beyond such a course of action. The court is bound 'to treat this kind of instrument with the utmost tenderness and liberality; and it is only when a reasonable construction and the discovery of the intent of the testator are utterly hopeless, that all effect should be denied to a will.' Den ex dem. Micheau v. Crawford, 8 N.J.L. 90 (Sup.Ct.1825); McMurtrie v. McMurtrie, 15 N.J.L. 276 (Sup.Ct.1836); Elle v. Young, 24 N.J.L. 775 (E. & A.1854).

In this State the use of the word 'cousin' in a will is construed to mean a first cousin, the child of an uncle or aunt. Walker v. Chambers, 85 N.J.Eq. 376, 96 A. 359 (Ch.1915). Had the testator simply used the word 'cousins' there would have been no difficulty. But he went further and added the words 'of whatever degree of consanguinity.' And the question is in what respect the use of that phrase alters the situation.

Consanguinity is the relation of persons descended from the same stock or common ancestors. It may be lineal or collateral. Lineal consanguinity is that which subsists between persons of whom one is descended in a direct line from the other. Collateral...