Collins v. Wardell

• Decision Date: 02 March 1903
• Citation: 65 N.J.E. 366,54 A. 417
• Parties: COLLINS et al. v. WARDELL et al.
• Court: New Jersey Supreme Court

54 A. 417

65 N.J.E. 366

COLLINS et al.

v. WARDELL et al.

Court of Errors and Appeals of New Jersey.

March 2, 1903.

(Syllabus by the Court.)

Appeal from Court of Chancery.

Bill by Gilbert Collins and others against Mary B. Wardell and others. From a decree of the Chancellor (52 Atl. 708), defendants appeal. Reversed.

The bill in this case was filed by the executors and trustees of the will of Mary P. Wintringham, deceased, to obtain a construction of the fifteenth, sixteenth, and seventeenth clauses of that will. These clauses are as follows:

"Fifteenth. I direct my executors hereinafter named out of the residue of my estate to set apart a fund sufficient to produce an income of six thousand dollars a year, and out of said income to pay to my brother William Phyfe four thousand dollars a year, and to my brother Duncan Phyfe two thousand dollars a year, for the terms of their natural lives, respectively, and after their death I direct the capital of said fund to be divided equally among the said Mary Wardell, Maria Wintringham, Thomas Wintringham, Joseph Wintringham, William Wintringham and Henry C. Wintringham.

"Sixteenth. It is my will that if any or either of the above named legatees or devisees shall die before my death the bequest or devise to the person dying shall lapse.

"Seventeenth. All the rest, residue, and remainder of my estate, real or personal, of or to which I shall die seised, possessed, or in any way entitled, I do give, devise, and bequeath to the said Emma P. Purdy, Mary Wardell, Emily Haight, Henry C. Wintringham, William Wintringham, and to Franca Wintringham, the grandniece of my late husband, and the two children now living of the said Thomas Wintringham, to be divided equally among said persons, share and share alike, and I direct that any inheritance tax to be levied or charged against my estate be paid out of that portion thereof bequeathed in this paragraph."

William Phyfe, the brother of the testatrix to whom an annuity of $4,000 was bequeathed by the fifteenth clause of the will, predeceased the testatrix. Thomas Wintringham, one of the persons mentioned in the fifteenth clause of the will, among whom the capital fund was to be distributed, also predeceased the testatrix. All the other persons named in the fifteenth and seventeenth clauses of the will are still living, some of those mentioned in the seventeenth clause being infants. The executors have now in hand a clear residue of personalty amounting to $188,120.84. The bill asks the Chancellor to construe the will, and direct and advise the complainants how much to set apart as a trust fund provided by the fifteenth paragraph thereof, and how much to reserve from immediate distribution thereunder as security for the annuity to the said Duncan Phyfe, and how, when, and to whom to distribute such trust fund. The decree orders that the will be construed to the effect that, notwithstanding the death of William Phyfe and Thomas Wintringham before the death of the testatrix, a fund sufficient to produce an income of $6,000 a year must be set apart under the fifteenth paragraph of said will, and that upon the death of Duncan Phyfe, named in said paragraph, and not until then, the capital of five-sixths of said fund will be payable to the legatees in remainder named in said paragraphs, who survived the testatrix, and that the one-sixth of the said fund, which, but for his death before the death of said testatrix, would have been payable to Thomas Wintringham, and all of the income of said fund until the death of the said Duncan Phyfe, except the annuity of said Duncan Phyfe, must be disposed of under the seventeenth paragraph of said will. The decree further orders that the fund set apart shall be not less than $150,000, and that said complainants have leave to apply to the Chancellor, on the foot of the decree, for an order of reference to a master to ascertain and report how much larger, if any, such sum shall be, and which securities now in the hands of the executors shall constitute said fund, and what valuation shall be set thereon for that purpose. Mary B. Wardell, Maria L. Wintringham, and Joseph P. Wintringham appeal from so much of the decree as orders that not until the death of Duncan Phyfe, named in the fifteenth paragraph of the will...