Fidelity Union Trust Co. v. Egenolf Day Nursery Ass'n of Elizabeth

• Decision Date: 06 December 1960
• Docket Number: No. C--40,C--40
• Citation: 166 A.2d 402,64 N.J.Super. 445
• Parties: FIDELITY UNION TRUST COMPANY, a New Jersey Corporation, as Trustee under the Last Will and Testament of Lena Egenolf, Deceased, Plaintiff, v. EGENOLF DAY NURSERY ASSOCIATION OF ELIZABETH, New Jersey, et al., Defendants.
• Court: New Jersey Superior Court

Page 445

64 N.J.Super. 445

166 A.2d 402

FIDELITY UNION TRUST COMPANY, a New Jersey Corporation, as

Trustee under the Last Will and Testament of Lena

Egenolf, Deceased, Plaintiff, v. EGENOLF DAY NURSERY ASSOCIATION OF ELIZABETH, New Jersey, et

al., Defendants.

No. C--40.

Superior Court of New Jersey

Chancery Division.

Dec. 6, 1960.

Riker, Danzig, Marsh & Scherer, Newark, for plaintiff (Edward J. Brown, Newark, of counsel).

Pollis, Williams, & Pappas, Elizabeth, for defendant Egenolf Day Nursery Ass'n, (Phidias L. Pollis, Elizabeth, appearing).

Darcy & Murray, Orange, for defendants Grace R. Mitchell and others (Alex Lazorisak, Orange, of counsel).

George Warren, Trenton, representative and guardian ad litem.

SIMMILL, J.C.C. (temporarily assigned).

Plaintiff here, as testamentary trustee under the last will and testament of Lena Egenolf, deceased, has instituted this proceeding for a construction of the will and for the court's instructions as to the trust established thereby.

Lena Egenolf, the decedent, died on May 15, 1942, leaving a last will and testament dated November 2, 1938. Paragraphs 4 and 5 of the will are as follows:

'Fourth: All the rest residue and remainder of my estate, both real and personal of whatsoever the same may consist and wheresoever situate, I give, devise and bequeath unto the Fidelity Union Trust Company of Newark, N.J., Arthur M. Birdsall, and my sister, Kathrine Schmidt, in trust, the same to be safely invested and reinvested as provided by law for the investment of trust funds and the income therefrom to be paid monthly to my sister, Kathrine Schmidt during her lifetime. I further direct that should my sister's urgent necessities require, then my trustees shall pay whatever is necessary out of the principal of my estate to meet any unusual, unexpected or urgent necessity of my said sister; * * *

'Fifth: From and after the death of my said sister, Kathrine Schmidt, or if she should predecease me, then, on my death, I give the principal of the said trust fund herein provided for the benefit of my said sister, as follows:

'All the rest, residue and remainder of the principal remaining in the said trust fund after the specific bequests mentioned in this clause of my will, I direct shall be held in trust by the said Fidelity Union Trust Company of Newark, N.J., and Arthur M. Birdsall, the surviving trustees and the income therefrom be paid monthly to the Egenolf Day Nursery of Elizabeth, N.J. to be applied towards its rent, expenses, maintenance and support. Should the said nursery be abandoned or cease to function or become extinct during the lifetime of my next of kin who are living at the time of my decease, or during the lifetime of any of their children, then and in those events I give the principal remaining in the said trust fund for the benefit of the Egenolf Day Nursery to my said next of kin and their children according to the statutes on descent and distribution. It is, however, my sincere desire and I know it was the desire of my late husband that the said Egenolf Day Nursery should continue to function and to grow from year to year for the benefit of those who may have access to the uses for which it was established. Should said Egenolf Day Nursery continue to function until after the death of my next of kin living at the time of my decease and their children, then and in that event I direct my trustees to pay the principal sum of my said trust fund to the Egenolf Day Nursery absolutely.'

The decedent had no children. Her husband and her parents predeceased her. She never had any brothers or sisters except Katherine Schmidt (designated in the will as Kathrine Schmidt), who was born on November 11, 1863 and died on July 1, 1949. Katherine Schmidt was single and had no children born to or adopted by her. The decedent's other next of kin living at the time of her demise are cousins once and twice removed and other distant relatives, all of whom are defendants to this suit.

Subsequent to decedent's death, plaintiff paid the income from the testamentary trust to Katherine Schmidt. Following the death of Katherine Schmidt the plaintiff-trustee has paid and is presently paying the income to defendant Egenolf Day Nursery of Elizabeth, New Jersey (Now Egenolf Day Nursery Association of Elizabeth, New Jersey), Said nursery has continued uninterruptedly to function and is actively engaged in the charitable purposes for which it was established.

The plaintiff first seeks a construction of the will and advice as to whether the trust terminated on the death of Katherine Schmidt because Katherine Schmidt was the testatrix's sole 'next of kin living at the time of my decease.' In order to answer this question the court's first duty is to determine the intent of the testatrix, an intent to be drawn from the language of the will as written taken in context and illuminated by the surrounding facts and circumstances. In re Armour's Estate, 11 N.J. 257, 271, 94 A.2d 286 (1953); Burlington County Trust Co. v. Di Castelcicala, 2 N.J. 214, 66 A.2d 164 (1949). The court's main concern is to determine intent, not so much from what the testatrix meant to say as it is to determine what she meant by what she did say. New Jersey Title Guarantee & Trust Co. v. Dailey, 123 N.J.Eq. 205, 196 A. 703 (Ch.1938); Summit Trust Co. v. McAuley Water Street Mission, 125 N.J.Eq. 505, 6 A.2d 406 (E. & A. 1939).

This court is of the opinion that the testatrix, by referring in her will to 'my next of kin living at the time of my decease,' did not intend to include her sister Katherine Schmidt, the life tenant. Katherine Schmidt is excluded from this class by the context of the will, which clearly demonstrates that she was to be carved out of and excluded from 'next of kin.' A contrary construction would have the testatrix say in effect in paragraph Fifth, 'Upon the death of my sister, I give the income from the residue of my estate to the nursery, and should said nursery continue to exist beyond the death of my sister, I direct my trustees to pay the principal to the nursery. Upon the death of my sister, should said nursery cease to exist during the lifetime of my sister, I direct that the principal be paid to my sister.' The incongruity resulting from such a construction alone would be sufficient to hold that the testatrix intended to exclude the life tenant from the class. Zeigenfus v. Snelbaker, 38 N.J.Super. 304, 118 A.2d 876 (Ch.Div.1955); Camden Trust Co. v. Matlock, 125 N.J.Eq. 170, 4 A.2d 502 (ch.1939); Francisco v. Citizens Trust Co., 132 N.J.Eq. 597, 29 A.2d 320 (Ch.1941), affirmed Francisco v. Bailey, 133 N.J.Eq. 28, 29 A.2d 884 (E. & A. 1942); Annotation, 30 A.L.R.2d 395, 407 (1953).

However, this conclusion is fortified by other factors. In paragraph Fifth the testatrix referred to her next of kin living at the time of her decease or 'during the lifetime of any of their children.' At the time of the execution of the will Katherine Schmidt was 75 years of age, unmarried and childless. The testatrix could not reasonably have anticipated that she would have any children. Also the words 'their children' indicate that the next of kin was used in the plural, thereby excluding the sister who was the sole next of kin at the time of the execution of the will. Oleson v. Somogyi, 90 N.J.Eq. 342, 107 A. 798 (Ch.1919), affirmed 93 N.J.Eq. 506, 115 A. 526 (E. & A. 1921). In view of the foregoing, the courts answer is in the negative to plaintiff's query as to whether the trust terminated on the death of Katherine Schmidt and whether the nursery is now entitled to the principal.

It is likewise evident that testatrix's primary concern was for her sister Katherine Schmidt, and when her sister had no further use of the income by reason of her death, the object of testatrix's bounty was the nursery, her next of kin receiving nothing as long as the nursery continued to function. If, however, the nursery was abandoned, ceased to function or became extinct, testatrix then desired that her estate be distributed as in the case of intestacy, although she limited such intestacy to those of her next of kin, excluding her sister, who were living at the time of her death and their children. She did not want her estate to be paid even to the object of her bounty, the nursery, should it not be an enduring institution, and she endeavored to see to it that it was an enduring institution by obligating it to function and exist as long as her next of kin and their children, some of whom she would never know, continued to live. If it did continue to so endure, then at the death of the last of them, the nursery was to be paid the principal and the trust would terminate. If it did not continue to so endure, then her next of kin living at her death and their children were to be paid the principal and the trust would terminate. The court finds the foregoing to be the intention of the testatrix.

The defendants, heirs at law and their children, now contend that the gift of the principal to the nursery is invalid and void as it offends the rule against perpetuities because the vesting is suspended during a period measured by lives of persons unborn at the death of the testatrix, namely the children of the next of kin living at the testatrix's death. They assert that they are now entitled to the principal without further ado by reason thereof. Hence the plaintiff-trustee seeks instructions whether the trust has terminated because the figt of the remainder is void and whether the money should be paid to the heirs at law living on May 15, 1942, the date of Lena Egenolf's death. The pertinent section of the will is the last sentence of paragraph Fifth. It provides as follows:

'Should said Egenolf Day Nursery continue to function until after the death of my next of kin living at the time of my decease and their children, then and in that event I direct my trustees to pay the principal sum of my said trust fund to the Egenolf...