Duane v. Stevens

• Decision Date: 29 November 1945
• Docket Number: 148/499.
• Citation: 44 A.2d 716
• Parties: DUANE et al. v. STEVENS et al.
• Court: New Jersey Court of Chancery

44 A.2d 716

DUANE et al.

v.STEVENS et al.

148/499.

Court of Chancery of New Jersey.

Nov. 29, 1945.

Proceeding by Catherine N. Duane and another, trustees, against Ethel Griffin Stevens, executrix, etc., and others, for the construction of the last will of Mary Noel Stevens, deceased.

Decree in accordance with opinion.

Syllabus by the Court.

1. The complainants, as the personal representatives of the last surviving testamentary trustee of a trust comprised solely of personalty, have properly assumed the duty of administering the trust estate, and inasmuch as the trust has terminated, they may seek the construction of the will and instructions concerning the distribution of the trust fund.

2. In construing a will courts may read a word or phrase in a sense different from that which is ordinarily attributed to it, when such departure is necessary to give effect to what appears, on view of the whole will, to have been the intention of the testatrix.

3. The word ‘either’ here construed to mean ‘any.’

4. The phrase ‘in the event of either of my children dying without issue’ held to refer to the happening of that contingency in the lifetime of the testatrix, in the absence of anything in the will evidential of a contrary intention.

5. In construing a will the intention of the testatrix is to be detected from a studious consideration of her entire will, in the light of the pertinent circumstances which in her case actually surrounded its composition.

6. The fact that the testatrix who wrote her own will was not learned in the law is a circumstance to be recognized.

7. The bequest of income without limit as to time, or gift over which can operate, is a bequest of principal, if there be no expression of a contrary intent. The same rule applies whether the gift be direct or through the intervention of a trustee.

8. The presumption against intestacy attains even greater tenacity where the subject of the gift comprises the residuary estate.

Hicks, Kuhlthau, Thompson & Deshler, of New Brunswick, for complainants.

R. E. & A. D. Watson, of New Brunswick, for executor of estate of William C. Stevens,

Morgan R. Seiffert, of New Brunswick, for executors of estate of Frances Noel Hall, and for executrix of estate of Henry H. Stevens.

Howard Duane, of Wilmington, Del., for executrix of Frances Noel Hall.

JAYNE, Vice Chancellor.

The complainants in their fiduciary capacities present for construction the last will and testament of one Mary Noel Stevens, deceased, and in particular they seek a declaration of their duties arising from article ‘Fifth’ of the will.

The will, which appears to be in the handwriting of the testatrix, was executed by her on May 2, 1912, at which time she was seventy-one years of age. Those upon whom she would naturally bestow her estate were her two sons, Henry H. Stevens and William Carpender Stevens, and her daughter, Frances Noel Hall. Henry, then forty-two years of age, was married and Frances, thirty-eight years of age, was also married, but neither had issue at the time of the execution of the will. William, who was then forty years old, never married. It is acknowledged that ‘at the time the Last Will and Testament of Mary Noel Stevens was executed, there were facts which justified the testatrix in considering that William needed a special degree of care and protection in his financial affairs.’ His personality and habits of life are described in the stipulation of facts submitted at the hearing of this cause.

The testatrix died on October 9, 1919. Henry, Frances, and William are all now deceased. William, who survived his brother and sister, died on December 30, 1942. All died without leaving any issue.

It is the residuary clause of the will that has occasioned doubt and diversity of opinion. It is here transcribed:

‘The rest and residue of my property I wish divided into three equal parts, paying to my son Henry and to my daughter Frances each one third. The remaining third I wish my executors to hold in trust for my son William, paying to him the income thereof, and directing and advising him how best to use or invest it. And in the event of either of my children dying without issue, his or her share to be divided among those remaining.’

The testatrix nominated Henry and Frances as the executor and executrix of her will, who in consequence became the trustees of the trust created for William. Upon the death of Henry, his sister Frances became the surviving trustee. William died eleven days after the demise of Frances, whereupon the trust terminated. It is disclosed that the trust corpus was and now is comprised solely of personalty, and thus the complainants as the personal representatives of the last surviving trustee have properly assumed the duty of administering the trust estate. Gulick v. Bruere, 42 N.J.Eq. 639, 9 A. 719; In re Thurston, 104 N.J.Eq. 395, 145 A. 110.

The gifts of the shares of the residue to Henry and Frances were regarded as unqualified and absolute and were so distributed. No claims against the estates of Henry or Frances are implicated in this cause.

The problem confronting the complainants can be succinctly posed: Did William receive an absolute interest in the one-third portion of the residue which accordingly passes into his estate, or should that share now be distributed equally among the estates of Henry, Frances, and William, all of whom survived the testatrix, Mary Noel Stevens, and were at her death, her next of kin?

The briefs submitted by counsel are suggestive of the divergent courses of construction that might be pursued. All have been deliberately considered, but to provide a prompt decision, the present memorandum will be confined to the disclosure of the sense and meaning I have preferred to attribute to the will of this testatrix, omitting a discussion of the reasons that have induced me to reject the other proposed interpretations.

It is not difficult to rescue the last sentence of the residuary clause from perplexity. The testatrix wrote, ‘And in the event of either of my children dying without issue, his or her share to be divided among those remaining.’ (Italics mine.) Obviously, the word ‘either’ was employed in the sense of ‘any.’ While such a use of the word ‘either’ is at present regarded as ungrammatical and incorrect, yet its use and interpretation to import ‘any one (of more than two)’ evidently continued to be acceptable until about the end of the last century. A New English Dict., Oxford, Vol. 3; The Encyclopaedic Dict. 1894; Writer's Guide and Index to English, Perrin; Usage and Abusage, Partridge; Webster's New International Dict., 2d ed., 1934. Vide, Herbert v. Ex'r of Tuthill, et al., 1 N.J.Eq. 141, 146; Lafoy v. Campbell, 42 N.J.Eq. 34, 37, 6 A. 300, reversed on other grounds, LaFoy v. LaFoy, 43 N.J.Eq. 206, 10 A. 266, 3 Am.St.Rep. 302. All doubt and uncertainty concerning that point is dissolved when it is recalled that the ‘children’ were three in number, and that the phrase ‘among those remaining 'indubitably is referable to those of her children who survive. In construing a will, courts may depart from its strict words and read a word or phrase in a sense different from that which is ordinarily attributed to it, when such departure is necessary to give effect to what appears, on a full view of the whole will, to have been the intention of the testator. Marshall's Ex'rs v. Hadley, 50 N.J.Eq. 547, 25 A. 325; Peer v. Jenkins, 102 N.J.Eq. 235, 140 A. 413.

However, it seems conspicuous that the testatrix did not intend that her residuary bequests to Henry and Frances should remain, after her death, in a state of contingent suspense. Perceiving nothing in the will or in the surrounding circumstances persuasively evidential of a contrary intention, it is accordingly resolved that in making the residuary bequests in such a form, the testatrix intended that the words of contingency, ‘in the event of either of my children dying without issue,’ should be applied only to the occurrence of the event in her own lifetime. Barrell v. Barrell, 38 N.J.Eq. 60, affirmed 39 N.J.Eq. 603; Burdge v. Walling, 45 N.J.Eq. 10, 16 A. 51; Brown v. Lippincott, 49 N.J.Eq. 44, 23 A. 497; Dranow v. Sherry, 80 N.J.Eq. 447, 85 A. 189; Steinhart v. Wolf, 95 N.J.Eq. 132, 122 A. 886; New Jersey Title, & c., Co. v. Snyder, 103 N.J.Eq. 502, 143 A. 725; Content v. Dalton, 121 N.J.Eq. 391, 190 A. 328, affirmed 122 N.J.Eq. 425, 194 A. 286, 112 A.L.R. 1031; R.S. 3:2-17, N.J.S.A. 3:2-17.

Nonetheless, the essence and...