Fid. Union Trust Co. v. Laise

• Decision Date: 16 July 1948
• Docket Number: 139/285.
• Citation: 60 A.2d 250
• Parties: FIDELITY UNION TRUST CO. v. LAISE et al.
• Court: New Jersey Court of Chancery

60 A.2d 250

FIDELITY UNION TRUST CO.

v.LAISE et al.

139/285.

Court of Chancery of New Jersey.

July 16, 1948.

Suit with Fidelity Union Trust Company as executor of and trustee under the last will and testament of Clemens A. Laise, deceased, against Elizabeth Marie Laise and others seeking instructions on questions of which it is confronted in the administration of the decedent's estate and of the trust under his will.

Decree in accordance with opinion.

Syllabus by the Court

In his will the testator directed that upon the death of his widow, a specific residence should be conveyed to a Christian denomination to be selected to operate and maintain a home for orphan children. The existing situation is such that the direction of the testator cannot be complied with. Held, gift impossible of fulfillment and cy pres doctrine will not apply.

Stuhr & Vogt, of Hoboken, for complaint.

Stryker, Tams & Horner, of Newark, for defendants Katherine Wenner, Walter Laise, Johanna Laise, Katherine Laise, Elizabeth Laise (daughter of Walter Laise), and University of Pennsylvania.

Nugent & Rollenhagen, of Jersey City, for defendant Trust Company of New Jersey, trustee.

H. David Zerman, of Union City for defendants Elizabeth Marie Laise' estate and Haworth Securities Corporation.

Gennet & Rafner, of Newark, for defendant Clemens J. Laise.

EGAN, Vice Chancellor.

The complainant seeks instructions on questions with which it is confronted in the administration of the decedent's estate and of the trusts under his will.

The decedent, a resident of the Borough of Tenafly in Bergen County, New Jersey, died August 28, 1938. His will was probated in the Prerogative Court of this state. In March, 1939, the executors and trustees under the will brought suit in this court for a construction of the testament and for instructions as to questions which had arisen in the course of the administration of the estate. The court's opinion is reported in 127 N.J.Eq. 287, 12 A.2d 882, and the decree (Exhibit C-2) was signed June 13, 1940.

The defendants, Katherine Wenner and Walter Laise are the mother and brother of the testator. The defendant, Johanna Laise, is the wife of Walter Laise aforesaid, and the defendants, Katherine Laise and Elizabeth Laise are the daughters of Walter Laise, and nieces of the testator. The defendants are beneficiaries of the residuary trust under Article Thirteenth of the will.

The defendant, The Trustees of The University of Pennsylvania, is the ultimate beneficiary of three-fifths of the income of the residuary trust.

The complainant asks what disposition is to be made of the testator's homestead property in Tenafly, and of the residue of the testator's estate under the provisions expressed in the Eleventh and Thirteenth Articles of the will, which read as follows:

‘Eleventh: I give, devise and bequeath unto my beloved wife, Elizabeth Marie Laise, for and during the term of her natural life, our home in Tenafly, New Jersey, together with lots No. 1 and No. 2 in Block Five (5) on map entitled ‘Third Amended Map of Highwood Heights, made for Malcolm S. Mackey, Tenafly, Bergen County, New Jersey’ located on the Easterly side of Knickerbocker Road, at the corner of Oak Avenue; together with all furniture, furnishings, household effects and equipment therein.

‘After the death of my beloved wife, I direct the trustees hereinafter named to convey said property to the American Chemistry Society of New York, together with all the furniture, furnishings, household effects and equipment therein, for the purpose of establishing a home for aged scientists. If said society shall accept said devise and shall establish such a home for aged scientists, then I direct that there shall be paid to the American Chemistry Society of New York, out of my residuary estate, the sum of Four Thousand Dollars per year for the maintenance of said house and grounds and the payment of insurance, taxes, if any, and other necessary charges for the upkeep and maintenance thereof.

‘If the said American Chemistry Society of New York shall not deem the plan of maintaining a home for aged scientists a feasible one, or for any other reason shall refuse to accept said devise, then I authorize, empower and direct said trustees to turn over said property to a christian denomination to be selected by them, for the maintenance of a home for orphan children; and for the maintenance of such home when established, I direct that there shall be paid out of my estate the sum of Four Thousand Dollars per year.’

‘Thirteenth: All the rest, residue and remainder of my estate, both real, personal and mixed, of which I am now seized or possessed, and of which I may hereafter become seized or possessed, including all property over which I have the right of appointment, particularly that under a trust agreement dated January 7, 1931, into which I entered with The Trust Company of New Jersey as Trustee, I give, devise and bequeath to my executors and trustees hereinafter named, as trustees, to have and to hold the same upon the following trust:

‘a. To set aside a sum sufficient to produce an income of Five Hundred Dollars per year for the payment provided in paragraph ‘Tenth’ hereof.

‘After my son reaches the age of thirty years, or having died before reaching that age, then, after the death of my wife and my mother, the sum so set aside shall be added to the balance of the principal of the trust.

‘b. After the death of my wife to set aside a sum sufficient to produce an income of Four Thousand Dollars per year for the payment provided in paragraph ‘Eleventh’ hereof; and until that time said income shall be distributed as part of the trust hereinafter set up.

‘c. To invest and reinvest the balance of the principal and to collect the interest, dividends, rents, issues and profits therefrom.

‘d. To pay three-fifths of the entire net income from said trust, quarter-annually, to my beloved wife, Elizabeth Marie Laise, for and during the term of her natural life.

‘To pay one-fifth of the entire net income from said trust, quarter-annually, to my mother, Katherine Wenner, for and during the term of her natural life; and

‘To pay the remaining one-fifth of the entire net income, quarter-annually, to my brother, Walter Laise, for and during the term of his natural life.

‘e. After the death of my said wife to pay two-fifths of the entire net income of said trust, quarter-annually, to my son, Clemens J. Laise, for and during the term of his natural life. The remaining one-fifth of the entire net income of the share which was payable to my said wife during her life is to be paid to the University of Pennsylvania, of Philadelphia, Pennsylvania, in the proportions and for the purposes set forth in subdivision ‘f’ hereof.

‘After the death of my mother, the one-fifth of the entire net income of the estate which was payable to her during her life shall also be paid to the University of Pennsylvania, of Philadelphia, Pennsylvania, in the proportions and for the purposes set forth in subdivision ‘F’ hereof.

‘After the death of my brother, Walter Laise, the one-fifth of the entire net income payable to him during his life shall be divided into four equal parts and one of said parts shall be paid to Johanna Laise, wife of my said brother; one thereof to Katherine Laise, his daughter; one thereof to Elizabeth Laise, his daughter, and the remaining part thereof to G. Walter Laise, his son, for and during their respective natural lives. As each of them shall die, the income payable to the one so dying shall be paid to the University of Pennsylvania in the proportions and for the purposes set forth in subdivision ‘F’ hereof.

‘f. The income payable to the University of Pennsylvania on the death of the beneficiaries in this paragraph mentioned shall be applied by said University as follows:

‘Fifty per cent thereof to the said University for the John Harrison Laboratory of Chemistry and the University hospital, share and share alike; ‘Twenty per cent thereof for endowments to establish scholarships for the study of diseases such as asthma, hay fever, infantile paralysis, etc.

‘Fifteen per cent thereof for endowments to establish scholarships for scientific research problems in the field of chemistry, especially radio television; and

‘The remaining fifteen per cent thereof for endowments for scholarships for the study of music, art or painting.

‘If the University of Pennsylvania shall decline to accept these endowments, then the trustees shall pay the same to such university as they shall deem advisable, and which shall accept and carry out the purposes thereof.’

The testator's widow, Elizabeth Marie Laise, died January 9, 1944. In the opinion of this court, reported as aforesaid, the devise of the Tenafly real estate to the American Chemistry Society of New York under Article Eleventh of the will, and the trust for its benefit under paragraph b. of Article Thirteenth of the will, were declared to have failed. The final decree aforesaid provided upon the death of the testator's widow, complainant should convey the Tenafly real property and its furnishings to a Christian denomination to be selected by it that will operate and maintain a home for orphan children. It was further advised that upon the death of the said Elizabeth Marie Laise, to set aside a sum sufficient to produce an income of $4,000 per annum and pay the same to the aforesaid Christian denomination for the maintenance of such a home and establishment. The situation existing at the present time is such that the direction of the court as aforesaid cannot be complied with. A zoning ordinance is in effect in the Borough of Tenafly which prohibits the establishment of an orphans home in the place where the testator's property is located. The ordinance limits the buildings to one family residences only, and the Borough officials have refused to rezone the property so that a building within the district may be used for an...