Commercial Trust Co. of N.J. v. Kohl

• Decision Date: 02 March 1942
• Docket Number: 129/476.
• Parties: COMMERCIAL TRUST CO. OF NEW JERSEY et al. v. KOHL et al.
• Court: New Jersey Court of Chancery

24 A.2d 809

131 N.J.Eq. 233

COMMERCIAL TRUST CO. OF NEW JERSEY et al.

v. KOHL et al.

129/476.

Court of Chancery of New Jersey.

March 2, 1942.

Syllabus by the Court.

1. Where an estate or interest is given in one clause of a will, in clear and decisive terms, the interest so given cannot be taken away or cut down by raising a doubt upon the extent and meaning of a subsequent clause, or by inference therefrom; but to justify a rejection of the first clause the language of the subsequent clause must be as clear and decisive as that of the first clause.

2. A bequest or legacy in lieu of dower acquires priority over all other legacies and need not abate in the event of a deficiency of assets.

3. Where the testator directs his executors, pending the filing of their account and the determination of the income to be derived, to pay a specified sum per month for support and maintenance during that period, the amounts so payable will be chargeable against the principal and not against the beneficiaries' share of the income.

4. Income arises from the profits after deducting all necessary expenses and charges, and may be uncertain in amount. An annuity is an amount certain directed to be paid absolutely and usually without contingency.

Action by the Commercial Trust Company of New Jersey and others, executors and trustees under the last will and testament of Henry Kohl, late of Rumson, Monmouth County, N. J., against Lavenia B. Kohl and others for construction of the will and for instructions.

Judgment in accordance with opinion.

Edwards, Smith & Dawson, of Jersey City, for complainant.

Stickel & Stickel, of Newark, for defendant Laveni aB. Kohl.

Milton, McNulty & Augelli, of Jersey City, for defendant Lavenia B. Kohl, guardian ad litem of Louise M. Kohl.

Carey & Lane, of Jersey City, for defendants Children's Home of Jersey City and Young Women's Christian Ass'n.

Tarrant & Tarrant, of Jersey City, for defendant St. Joseph's Home for Blind.

Stein, Stein, & Stein, of Elizabeth, for defendant Sisters of Poor of St. Francis.

Samuel S. Stern, of Jersey City, for defendant Christ Hospital.

Frederick M. Barnes, of Jersey City, for defendants Jersey City Council Girl Scouts and Jersey City Council Boy Scouts of America.

George G. Tennant, of Jersey City, for defendant Young Men's Christian Ass'n.

Mark A. Sullivan, of Jersey City, for defendant St. Peter's College.

Bauer & Ranker, of Union City, for defendant Christian Orphan Home.

Edward O. Bauer, of Elizabeth, for defendants Vivian M. Paul and Isabel M. Snow.

William F. Hanlon, of New York City, for defendants John William Kohl, Emma Theresa Bock, George Rudolph Bock, Marie Bock Meyer, Anna L. Mullins, Albert B. Van Clief, Frank Taboskey, John Leary and John William Kohl, Jr.

EGAN, Vice Chancellor.

Henry Kohl died March 10, 1937, leaving a last will and testament which was probated before the surrogate of Monmouth County on March 22, 1937. His executors, the complainants, seek a construction of the will, and certain instructions. They submit these inquiries:

1. Do the provisions of the will of Henry Kohl require that the payments therein provided to be made to the widow, Lavenia B. Kohl, and the daughter, Louise M. Kohl, and the issue of said daughter, if any, be made to them only out of, and to the extent of, the net income of the estate of the decedent, or do the provisions of the will require that such payments be made at all events, regardless of the sufficiency or insufficiency of net income, and out of the corpus of the estate, if necessary?

2. If the payments to be made to the widow, and daughter, and issue of the daughter, are to be made out of, and only to the extent of, net income, are the executors or trustees required to reimburse the recipient or recipients of such net income for the amount by which the income tax of such recipient or recipients is increased by reason of the inclusion in their taxable income of the amount received by such recipient or recipients from the estate of this decedent?

3. Is the widow, Lavenia B. Kohl, obligated to reimburse the executors for the amount of estate taxes (United States, New Jersey, and Florida) paid by the executors as a result of the inclusion in the gross estate, for estate tax purposes, of the value of the real estate owned by decedent and the widow, as tenants by the entirety?

The facts have been stipulated.

The part of the will around which controversy revolves is paragraphs Eleventh and Twentieth. Section C-1 of paragraph Eleventh reads as follows "C-1. If my wife, Lavenia B. Kohl and my daughter, Louise Mazzola Kohl shall both survive me and my said daughter shall, at the time of my death, be unmarried and under the age of twenty-one years, then to pay to my said wife, the sum of seventy-five thousand dollars ($75,000.00) per year in equal monthly instalments until she shall die, or my said daughter shall marry under the age of twenty-one years, or attain the age of twenty-one years, or my said wife and my said daughter shall cease to live together, or until the period during which my executors shall have control of my estate shall end, whichever of such events shall first occur. Said sum and sums shall be for the use of my said wife and my said daughter. The expenditure of such sum and sums however, and how much thereof shall be expended for the benefit of my said daughter, shall be in the sole discretion of my said wife and no accounting shall be required of my said wife as to the expenditure of such sum and sums, or as to the amount thereof expended for the benefit of my said daughter."

Sections C-2, C-3, C-4, C-5, C-6 and C-7 of paragraph Eleventh are all co-related to section C-1 above quoted, and provide for certain contingencies as to testator's wife and on the marriage or death of his daughter.

Section C-8 of said paragraph Eleventh reads:

"C-8. Each year, during the period of control of my estate by my executors, after the payment of that portion of the net income of my estate hereinabove provided to be paid to my said stepmother and/or said Catherine Kohl, and/or my said wife and/or daughter and/or the issue of my said daughter, as the case may be, shall have been made, and my executors shall also have paid all necessary and proper administration charges, taxes and interest, and all other proper disbursements, the balance of net income remaining in their hands, shall be applied by them toward the repayment of monies borrowed by them, (if any), for the benefit of my estate, or for the payment of taxes assessed against my estate, or against that portion thereof herein given to my executors and/or trustees for the benefit of my said stepmother, of said Catherine Kohl, of my said wife, of my said daughter, and/or of said issue of my said daughter, until the period during which my executors shall have control of my estate shall end, or until all said sums so borrowed and all interest charges thereon shall have been paid and satisfied whichever event first occurs.

"In the event that all borrowed monies and interests, taxes and interest, and all proper disbursements and charges, shall have been paid and satisfied prior to the end of the period during which my executors shall have control of my estate, then I direct my executors to dispose of such balance of net income as follows:

"If on the occurrence of such event, the conditions as set out in Section C-1 of this paragraph exist, the whole of such balance of yearly net income shall be paid over to my said wife for the purposes and under the same conditions and until the occurrence of the same events as are contained in such Section. * * *

"It being understood, however, that upon the sale of my National Grocery Company stock, as hereinafter provided for, all moneys borrowed by my said executors for any purpose and then remaining unpaid, and all unpaid taxes and other indebtedness, shall be paid from the proceeds of such sale."

The parts omitted from the above-quoted Section C-8 merely indicate how the surplus income shall be distributed on the happening of events and conditions in C-2 to C-7.

It may be pertinent to inquire:

(1) Did the testator by his will express his intentions in full?

(2) Does the will show his dominant intent?

(3) Is there any ambiguity, conflict, or inconsistency in the above-quoted provisions from the will?

Answers to these queries, in the numerical order of their presentation, are as follows:

(1) Yes.

(2) Yes.

(3) No.

The well-recognized rule governing the construction of wills is that the dominant idea pervading the testament must control; and minor considerations must yield if in conflict therewith. Secondary intent will be construed, if possible, so as to harmonize with the testator's paramount intent. Thompson on Construction of Wills, Sections 4, 46, 49 and 95; Miller v. Worrall, 62 N.J.Eq. 776, 48 A 586, 90 Am.St.Rep. 480; Stout v. Cook, 77 N.J.Eq. 153, 75 A. 583; Johnson v. Bowen, 85 N.J.Eq. 76, 95 A. 370; Sayre v. Kimble, 93 N.J.Eq. 30, 114 A. 744; Rowley v. Currie, 94 N.J.Eq. 606, 120 A. 653; Byrne v. Byrne, 123 N.J.Eq. 6, 195 A. 848. It has truly been said "no will has a twin brother". In re Burton's Will, 156 Misc. 175, 281 N.Y.S. 579, 583. That perspicuous contribution to the pages of testamentary disposition is comprehensive. Apart from its legal implications it exhibits the wisdom and industry of its judicial author. Every will bears a distinctive outline; it conveys its own message. In case of doubt in the language, we must look to the instrument executed by the decedent and from its "four corners" endeavor to ascertain the testator's predominant intent.

Vice Chancellor Backes in Johnson v. Haldane, 95 N.J.Eq. 404, 124 A. 63, 64, succinctly expresses the principle in the following language: "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. * * * A...