David v. Atl. County Soc. for Prevention of Cruelty to Animals

• Decision Date: 10 May 1941
• Docket Number: 129/376
• Citation: 129 N.J.Eq. 501,19 A.2d 896
• Parties: DAVID et al. v. ATLANTIC COUNTY SOC. FOR PREVENTION OF CRUELTY TO ANIMALS et al.
• Court: New Jersey Court of Chancery

19 A.2d 896

129 N.J.Eq. 501

DAVID et al.

v. ATLANTIC COUNTY SOC. FOR PREVENTION OF CRUELTY TO ANIMALS et al.

129/376

Court of Chancery of New Jersey.

May 10, 1941.

Suit by William M. David and another, executors under the last will and testament of Emily B. Pendleton, deceased, against the Atlantic County Society for the Prevention of Cruelty to Animals and others for a construction of the will of Emily B. Pendleton, deceased, and for a declaration of the rights of certain beneficiaries, and for a determination as to whether Emily B. Pendleton, deceased, exercised the testamentary power of appointment under a certain trust indenture.

Decree in accordance with opinion.

Endicott & Endicott, of Atlantic City, for complainants.

Frank S. Farley, of Atlantic City (Julius Waldman, of Atlantic City, of counsel), for defendant Atlantic County Soc. for Prevention of Cruelty to Animals.

Cole & Cole, of Atlantic City (Wilbur C. Bishop, of Atlantic City, of counsel), for defendant Copley Amory H.

Augustine A. Repetto, of Atlantic City (William Carson Bodine, of Pepper, Bodine, Stokes & Schoch, and William Logan Fox, of Freeman, Fox & Steeble, both of Philadelphia, Pa., of counsel), for defendants Princess Poniatowska et al.

Robert K. Bell, of Ocean City (Joseph H. Grubb, Jr., of Philadelphia, Pa., of counsel), for defendant Jefferson Medical College.

Albert C. Abbott, of Atlantic City, for defendant, General Lafayette Chapter of Daughters of American Revolution.

SOOY, Vice Chancellor.

Complainants, executors under the will of Emily B. Pendleton, deceased, seek a construction thereof and a declaration of the rights of certain beneficiaries therein named, as well as a determination by the Court as to whether under the 12th clause of said will, decedent "has exercised the testamentary power of appointment under the Emily Barton trust indenture of February 27, 1882."

The Emily Barton trust aforesaid was created by Mrs. Pendleton, complainant's decedent, before her marriage to Mr. Pendleton. At the time of the creation of the trust, decedent was a resident of Philadelphia, Pennsylvania, where she continued to reside until her removal to Atlantic City, New Jersey, which was some 15 years before her decease. Her will was duly probated in Atlantic County after her decease.

Complainant, the Pennsylvania Company, is not only one of the executors under the Pendleton will, but also trustee under the trust indenture of 1882, and is a corporation of Pennsylvania, having its principal office and place of business in Philadelphia. The trust assets have at all times heretofore and still are in the possession of the trustee at its Philadelphia office. The present book value of the trust estate is $179,000. At its inception, the trust estate consisted of personalty and still continues as such.

It is conceded that independently of the trust funds, the assets of Mrs. Pendleton's general estate are amply sufficient to satisfy all requirements of her will, including not only the payment of legacies, but also any outstanding indebtedness.

Testatrix died on February 24, 1940, having executed her last will and testament on January 5, 1933. She died without issue. Her next of kin are a first cousin, Lady Ava Willing Ribblesdale, a first cousin, Copley Amory II, and a first cousin once removed, Princess Frances Poniatowska.

By the 12th clause of testatrix' will she provided: "Twelfth. All the rest, residue and remainder of my estate, real, personal and mixed of whatsoever nature, and wheresoever situate, including all lapsed legacies, lapsed bequests, lapsed sums of every nature and kind arising from any and all personal property, sales of real estate, held in my residuary estate, principal to pay annuities in case of death and also including the principal of the trust funds over which I am given the power of appointment by the Will of Susan R. Barton, deceased, and in execution of any and all power given to me and contained in the said Will of the said decedent, I give, devise and bequeath in equal shares or parts to the Jefferson Medical College of Philadelphia (1) for research work in the application of radium for the treatment of cancer and for the purchase of radium for such treatment, or for such other purposes in the treatment of the said disease as the Board of Trustees of the said Hospital may hereafter determine to be advisable and shall be found and determined by them to be the best method of the treatment of the said disease, having in mind the probable development of research work in connection with its treatment, in memory of my husband, Edward Gray Pendleton, and (2) to the said Jefferson Medical College Hospital of Philadelphia, Department of Disease of the Chest, for the study of tuberculosis and the care of those who may be in the said Hospital for the treatment of the same, in memory of my Mother, Emily C. Barton. These gifts are conditioned upon the agreement by the said Hospital that no part of the fund, income or principal, shall be used for any purpose connected with vivisection, to which I am unalterably opposed."

It will be observed that under the will provisions aforesaid, the next of kin did not share in the residue of testatrix' estate, but that the Jefferson Medical College of Philadelphia is the beneficiary thereunder.

On February 27, 1882, testatrix, then Emily Barton and then a resident of Philadelphia, Pennsylvania, transferred to the Pennsylvania Company certain assets under a trust indenture of that date, in which instrument the trustee was directed, upon donor's decease, to "* * * pay over, assign and convey the principal to such persons, for such estates, legal, equitable, life or otherwise, and with such powers, as she, the said Emily Barton by any last will or writing in the nature thereof, shall appoint, or, upon her decease in case she shall not exercise this power of appointment to divide the principal into as many parts or shares as there shall be children of hers then alive; and children of hers then deceased, represented by descendants then living, and to sub-divide the shares falling to each set of descendants of a child of hers then dead, among them 'per stirpes' upon the principle of representation and to pay over to such child and descendants, who shall then be found entitled, its share in fee. In trust in case of the death of the said Emily Barton without her having exercised her power of appointment there shall be no descendants of hers then alive, to pay over, assign and convey the said principal to such persons as would then take the real and personal estate, as heirs and next of kin of the said Emily Barton had she then died actually seized and possessed thereof."

It will be noted that the beneficiaries under the trust indenture, in case of failure of the donor to exercise the power of appointment reserved in that instrument, are those persons heretofore named as the next of kin of the donor, and that the Jefferson Medical College is not such a beneficiary. Mrs. Pendleton was not survived by children or descendants of children.

The first question for decision is, Does this Court have jurisdiction to construe the Pendleton will for the purpose of determining whether or not testatrix executed the power of appointment reserved to her under the trust indenture of 1882, and if the Court has such jurisdiction, should it be exercised at this time?

The Pennsylvania Company, as trustee, has filed its account of the 1882 trust funds in the Orphans Court of Philadelphia, in which proceeding, now pending, all parties who may have any interest in the trust funds are before that court, and wherein that court, as an incident to the accounting, will determine those to whom the trust funds will be distributed by the trustee, and wherein, as a preliminary to the question of distribution, that court will, of necessity, determine whether Mrs. Pendleton exercised the power of appointment reserved to her. Whether or not the Philadelphia Orphans Court will determine the foregoing question under the Pennsylvania law or under the New Jersey law is not necessary for me to pass upon. Suffice it to say that in order to determine the question of distribution it will be necessary to determine the vital...