Clark v. Citizens Nat. Bank of Collingswood

• Decision Date: 28 October 1955
• Docket Number: No. C--811,C--811
• Citation: 38 N.J.Super. 69,118 A.2d 108
• Parties: Dorothea J. CLARK, executrix under the Will of Ernest W. Clark, deceased, Plaintiff, v. CITIZENS NATIONAL BANK OF COLLINGSWOOD, New Jersey, J. E. Edwards, cashier of the Guaranty Bank and Trust Company, Belhaven, North Carolina, W. Erwin Tilson, Principal of Belhaven High School, Belhaven, North Carolina, and Grover C. Richman, Jr., Attorney-General of the State of New Jersey, Defendants. . Chancery Division
• Court: New Jersey Superior Court

Page 69

38 N.J.Super. 69

118 A.2d 108

Dorothea J. CLARK, executrix under the Will of Ernest W Clark, deceased, Plaintiff, v. CITIZENS NATIONAL BANK OF COLLINGSWOOD, New Jersey, J. E Edwards, cashier of the Guaranty Bank and Trust Company Belhaven, North Carolina, W. Erwin Tilson, Principal of Belhaven High School, Belhaven, North Carolina, and Grover C. Richman, Jr., Attorney-General of the State of New Jersey, Defendants.

No. C--811.

Superior Court of New Jersey.

Chancery Division.

Oct. 28, 1955.

Howard G. Kulp, Jr., Camden, for plaintiff (Brown, Connery, Kulp & Wille, Camden, attorneys).

Grover C. Richman, Jr., Atty. Gen. (Thomas L. Franklin, Deputy Atty. Gen., appearing), attorney for defendants.

HANEMAN, J.S.C.

Plaintiff herein filed a suit seeking the construction of the will of Ernest W. Clark, deceased. In answer thereto, the Attorney General of the State of New Jersey filed an answer in which it was stated that it had no knowledge or information sufficient to form a belief as to the allegations of the complaint. The defendant Citizens National Bank of Collingswood, New Jersey, filed an answer and stated, among other things, that it was presently in the process of liquidation and therefore powerless to act in a banking or trust capacity except for the purpose of liquidation. Thereupon the plaintiff moved for a summary judgment upon affidavits filed and testimony taken in open court. In the light of the consent of the defendants to proceed in this matter, it will be considered as if the same were submitted on final hearing. The facts in connection herewith are as follows:

On Saturday, March 1, 1952, Ernest W. Clark, then being ill and confined to his home, executed two instruments, (1) an Inter vivos trust agreement, and (2) a last will and testament. The order in which reference to these instruments is made is not to be deemed a conclusion as to the sequence of their execution. The Inter vivos trust agreement, which was not executed as required for the execution of a will, created a charitable trust, giving broad powers to the named trustee in the management and conduct of the investments in said trust, and provided in addition, in part, as follows:

'Witnesseth that: Whereas the Donor has this day deposited with the Trustee certain monies, property, securities, investments and/or other assets, as set forth and enumerated in Schedule 'A' annexed hereto and hereby made a part hereof, in trust nevertheless for the uses and purposes, and under and subject to the terms and provisions hereinafter set forth; which trust the Trustee is willing to accept and assume; and the said parties desire to herein and hereby express and set forth and define the nature and terms of said trust:

(a) The Trustee shall pay the entire net income derived from the trust estate during the Donor's lifetime to the Donor, or in accordance with such written instructions or directions as may be given by the Donor to the Trustee, from time to time, with respect thereto; and the Trustee shall further pay and/or deliver to the Donor, from time to time, in addition to the said payments of income, such monies or other assets from the principal of the trust estate as the Donor may request, or as the Trustee may deem necessary for the support, maintenance, comfort or welfare of the Donor.

(b) From and after the Donor's death the Trustee shall pay the entire net income derived from the trust estate unto the wife of the Donor, Dorothea J. Clark, if she shall survive him, in convenient installments, for and during the term of her natural life, or until her remarriage; and her receipt for any sum or sums so paid to her shall be a complete and sufficient discharge of the Trustee in such regard.

(c) Upon the death or remarriage of the Donor's said wife, or if she should predecease the Donor then upon the Donor's death, the trust estate, or so much thereof as remains, whether principal or accumulated income, shall be held and retained, in trust, by the Trustee, in perpetuity, and shall be known and designated as the Clark Memorial Fund in memory and honor of the father and mother of the Donor, Ernest W. Clark and Lula B. Clark, his wife, both late of Belhaven, North Carolina, and the net income therefrom shall be paid and/or applied to further the education of such worthy and needy graduates of the Belhaven High School, of Belhaven, North Carolina, as may be selected in the manner hereinafter set forth.'

'Schedule 'A'. Securities deposited by Donor with the Trustee under the foregoing agreement: 100 shares, Camden Fire Insurance Association.'

The said last will and testament provided, as far as here pertinent, as follows:

'* * * all of my residuary estate, I give, devise and bequeath unto the Citizens National Bank of Collingswood, New Jersey, and to its successor or successors, In Trust Nevertheless for the uses and purposes, and under and subject to the terms and provisions of a certain agreement of trust entered into between the said Citizens National Bank and myself, and bearing even date herewith, including such amendments to and modifications of the same if any, as may hereafter and during my lifetime be made and agreed upon between the parties to said agreement, the property passing under this paragraph to be added to and to become and be a part of the corpus of the trust estate established by said agreement.'

There is great uncertainty as to whether the trust agreement or the last will and testament was first signed on March 1, 1952. The state of the proof is such that there is no positive evidence of the order in which said instruments were signed. However, it was proven that the trust agreement and the 100 shares of Camden Fire Insurance Association stock therein referred to were not delivered to the Citizens National Bank of Collingswood, New Jersey before Monday, March 3, 1952, and that the said Citizens National Bank did not execute the said trust agreement or accept the said trust before Monday, March 3, 1952. The certificate of stock of the Camden Fire Insurance Association remained in the safe deposit box of the said Ernest W. Clark, and under his sole and exclusive control, until shortly before delivery to the Citizens National Bank, coincidental with the delivery of the trust agreement.

Ernest W. Clerk died on April 24, 1953, and his above referred to will was admitted to probate by the Camden County Surrogate on June 29, 1953.

The question which the plaintiff now seeks to have determined is whether the residue passed at the death of the testator to the Citizens National Bank, or whether the testator died intestate as to such residue. Plaintiff argues that the said Ernest W. Clark died intestate as to said residue.

Basically, the question with which the court is confronted is whether the trust agreement and its terms were incorporated in the last will and testament of the deceased by reference, or whether under the facts here present it could be concluded that the terms of said trust agreement had such independent significance that the residue must pass to and be distributed by the trustee named in said trust agreement in accordance with the terms thereof.

The expression 'incorporation by reference' to which allusion is here made, signifies that a will duly executed and witnessed may incorporate into itself by appropriate reference, intent and identification, an existing written paper or document, whether or not executed as a will or signed by the testator or any other person, and whether or not it has any validity in itself, to the end and with the effect of making it a part of such will. It is unsettled whether this doctrine has been accepted in New Jersey, although the court, in Murray v. Lewis, 94 N.J.Eq. 681, 121 A. 525 (Ch.1923), rejected the recognition of this doctrine.

The following cases have sustained the validity, however, of a testamentary gift to individuals or trustees named in a separate instrument existing at the time of the execution of the will there involved: Swetland v. Swetland, 100 N.J.Eq. 196, 134 A. 822 (Ch.1926), affirmed 102 N.J.Eq. 294, 140 A. 279 (E. & A. 1928); First-Mechanics National Bank of Trenton v. Norris, 134 N.J.Eq. 229, 34 A.2d 746 (Ch.1943); Bottomley v. Bottomley, 134 N.J.Eq. 279, 35 A.2d 475 (Ch.1944). See also Noice v. Schnell, 101 N.J.Eq. 252, 137 A. 582, 52 A.L.R. 965 (E. & A. 1927).

The following cases have held that a testamentary gift was invalid where reference was made to a written instrument insufficiently identified, or where the instructions were not contained in a writing executed with the formalities required of a will, or in existence at the time of the execution of said will: Magnus v. Magnus, 80 N.J.Eq. 346, 84 A. 705 (Ch.1912); Condit v. Reynolds, 66 N.J.L. 242, 49 A. 540 (E. & A. 1901); Hackensack Trust Co. v. Hackensack Hospital Association, 120 N.J.Eq. 14, 183 A. 723 (Ch.1936); Smith v. Smith, 54 N.J.Eq. 1, 32 A. 1069 (Ch.1895), affirmed 55 N.J.Eq. 821, 41 A. 1116 (E. & A. 1896); Hartwell v. Martin, 71 N.J.Eq. 157, 63 A. 754 (Ch.1906).

There is a division between the acceptance and rejection of this doctrine in the other States of the Union. The theory upon which such incorporation is not permitted is that the instrument itself, which purports to make a testamentary disposition of the estate of the deceased, was not executed with the formality required for the execution of a will and that it is, therefore, subject to as much possible fraud as would be a will not so executed in accordance with the statutory requirements. There is a distinction between a gift to an existing trust and a provision incorporating the terms of a trust into a will. There is more than a technical difference between these two situations. In the former instance, the acts giving rise to such a gift are performed for some non-testamentary reason, prior to and frequently unconnected with the will, and so satisfy the underlying principle of the Wills Act. In the...