Douglass v. Bd. of Foreign Missions of the Presbyterian Church in the United States of Am.

• Decision Date: 14 April 1932
• Parties: DOUGLASS et al. v. BOARD OF FOREIGN MISSIONS OF THE PRESBYTERIAN CHURCH IN THE UNITED STATES OF AMERICA et al.
• Court: New Jersey Court of Chancery

160 A. 37

DOUGLASS et al.

v. BOARD OF FOREIGN MISSIONS OF THE PRESBYTERIAN CHURCH IN THE UNITED STATES OF AMERICA et al.

Court of Chancery of New Jersey.

April 14, 1932.

Syllabus by the Court.+++

1. In construing a will, this court will, where possible, adopt an interpretation which will avoid an intestacy. This is especially true where the disposition of the residue is involved.

2. The phrase "not having been married" may mean not having been married at the time of death, if this meaning can be gathered from a reasonable interpretation of the intention of the instrument.

3. Will examined, and held, that the testator so meant it in the document under consideration.

Suit by Payson Stone Douglass and another, as trustees under the last will and testament of Levi P. Stone, deceased, and others, against the Board of Foreign Missions of the Presbyterian Church in the United States of America and others.

Decree in accordance with opinion.

Whiting & Moore, of Newark, for complainants.

William S. Gnichtel, of Newark (Tompkins McIlvaine, of New York City, of counsel), for defendants Board of Home Missions of the Presbyterian Church in the United States of America and Board of Foreign Missions of the Presbyterian Church in the United States of America.

Huston Dixon, of Trenton, for defendants Trustees of the Theological Seminary of the Presbyterian Church and Trustees of the Orange Orphans' Soc.

CHURCH, Vice Chancellor.

This is a bill for the construction of the will of the late Levi P. Stone. The clause in dispute is the tenth, which reads as follows: "Tenth: Upon the death of either of my said daughters not having been married, the one equal one third part of the residue of my Estate hereinbefore devised and bequeathed in trust for her shall be divided into six equal parts and be distributed as follows: One part to the Trustees of the Board of Foreign Missions of the Presbyterian Church in the United States of America; One part to the Trustees of the Board of Home Missions of the Presbyterian Church in the United States of America; One part to the Trustees of the Theological Seminary of the Presbyterian Church located at Princeton, New Jersey, as a permanent fund, the income of which is appropriated to the use of that Seminary as the Trustees and Directors thereof may think most beneficial; One part to the Trustees of the Orange Orphan Society, to be held as a permanent fund, the income of which is to be appropriated to the use of that Society. And I hereby authorize and empower my said daughters to dispose of the remaining two of the said six parts in such manner as my said daughters may, by any last will by her duly executed, direct and appoint."

The testator left two daughters who both married. One, Mrs. Douglass, died, leaving two children. Her share, therefore, went to her children under the twelfth clause of the will, as is conceded by all counsel in their briefs. The other daughter, Mrs. Whittemore, died childless; her husband having predeceased her. The controversy is as to the meaning of the phrase, "Upon the death of either of my said daughters not having been married." If these words mean never having at any time gone through a marriage ceremony, the result is an intestacy as to the one equal third part of the residue of the estate bequeathed under the tenth clause of the will. This the law abhors. The first case I find, supporting this principle, is Leigh v. Savidge, 14 N. J. Eq. 124, at page 134, in which Chancellor Green said: "The natural and reasonable presumption is, that when a will is executed the testator designs to dispose of his entire estate, and does not intend to die intestate as to any part of his property."

In Yawger v. Yawger, 37 N. J. Eq. 216, at page 218, Vice Chancellor Bird said: "Now the law prefers a construction which will prevent a partial intestacy"—citing Vernon v. Vernon, 53 N. Y. 351.

In Carter v. Gray, 58 N. J. Eq. 411, at page 416, 43 A. 711, 712, Vice Chancellor Grey held as follows: "When the question presented requires the construction of a residuary clause, the courts have a strong disposition so to interpret it as to prevent an intestacy with regard to any part of the testator's property. Leake v. Robinson, 2 Mer *386. 'It must always be remembered,' says Sir Richard Pepper Arden, M. R., in Philipps v. Chamberlaine, 4 Ves. *59, 'that, when the residue is given, every presumption is to be made that the testator did not intend to die intestate;' and in Warner v. Willard, 54 Conn. 470,' 9 A. 136, where there was a devise of the real estate in terms for life to the wife, and also a gift of 'all the residue of my estate, of whatever name or kind,' to her, the residuary gift was held to have passed to the wife a fee in the real estate."

It should be noted that the case before me Involves the disposition of a residuary estate. In Kelly v. Owen, 7 Wall. (74 U. S.) 496, 498, 19 L. Ed. 283, Justice Field said: "The terms 'married,' or 'who shall be married,' do not refer, in our judgment, to the time when the ceremony of marriage is celebrated, but to a state of marriage."

In Den ex dem. Micheau v. Crawford, 8 N. J. Law, 90, Chief Justice Ewing, speaking for the Supreme Court held: "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."

In Goetter v. Berth, 99 N. J. Eq. 625, at page 626, 133 A. 872, 873, I held: "The presumption is that the testator intended to dispose of his entire estate and not to die intestate as to the whole or any part thereof" —quoting 40 Cye. 1409, which cites cases from the United States courts and from the following states: Arkansas, California, Connecticut, District of Columbia, Georgia, Illinois, Indiana, Kentucky, Maryland, Massachusetts, Michigan, Missouri, New Jersey, New York, North Carolina. Ohio. Pennsylvania, Tennessee, West Virginia, Wisconsin.

The last New Jersey case I have found is that of Baldwin v. Baldwin, 107 N. J. Eq. 91, 151 A. 741, 742, in which Vice Chancellor Fallon says: "A will ought not to be so construed as to produce intestacy, and that the natural and reasonable presumption is that, when a will is executed, the testatrix designs to dispose of her entire estate, and does not intend to die intestate as to any part of her property."

Is there then a construction which will sustain the will and avoid an intestacy? From a reading of the will as a whole, it becomes apparent that the testator was much interested in the charities of the Presbyterian Church. In the third clause he bequeaths $10,000 each to the foreign and home missionary boards of that organization. In the tenth clause he again mentions them and the Presbyterian Theological Seminary at Princeton, and also in the eleventh clause. It is clear to me that he intended to keep the bequests to his two daughters distinct and separate, to provide in each instance for the care of their husbands and children if they left any surviving them, and, if not, in each instance to bequeath the daughter's share to the charities above mentioned. The tenth clause leaves, in case either of the daughters dies "not having been married," four parts to the charities and two parts to be disposed of by her will. The eleventh, in case the daughter dies leaving a...