First Camden Nat. Bank & Trust Co. v. Hiram Lodge No. 81

• Decision Date: 14 January 1944
• Docket Number: 149/436.
• Citation: 35 A.2d 490
• Parties: FIRST CAMDEN NAT. BANK & TRUST CO. et al. v. HIRAM LODGE NO. 81, FREE AND ACCEPTED MASONS, CHESTNUT HILL, PHILADELPHIA, PA., et al.
• Court: New Jersey Court of Chancery

35 A.2d 490

FIRST CAMDEN NAT. BANK & TRUST CO. et al.

v.HIRAM LODGE NO. 81, FREE AND ACCEPTED MASONS, CHESTNUT HILL, PHILADELPHIA, PA., et al.

149/436.

Court of Chancery of New Jersey.

Jan. 14, 1944.

Bill in chancery by First Camden National Bank & Trust Company and others, as executors under the last will and testament of Joseph Greenstone, deceased, against Hiram Lodge No. 81, Free and Accepted Masons, Chestnut Hill, Philadelphia, Pa., and others, seeking instructions.

Decree in accordance with opinion.

1. A suit for the enforcement of a charitable trust may be maintained by the Attorney General, by a co-trustee or by a person having a special interest in the enforcement thereof, but not by a settlor or his personal representatives.

2. The duties of an executor are to collect the effects of a decedent, to pay claims against the estate and distribute to those entitled thereto, but do not extend to a duty to enforce the terms of a charitable trust created by his decedent.

3. The general rule is that the jurisdiction of this court to direct and advise executors will only be exercised so far as is actually needed for existing emergencies and not for future contingencies.

4. R.S. 3:15-1 to 8, N.J.S.A., vest the Orphans' Court with jurisdiction to determine the validity of agreements compromising litigation arising upon the filing of caveats against the probate of wills, and this court will not disturb that jurisdiction, at least under the circumstances of the instant case.

W. Louis Bossle, of Camden, for complainants.

Ralph N. Kellam, of Camden, for defendants Hiram Lodge No. 81, F. & A. M., and Jefferson Medical College of Philadelphia, Hospital Department.

Wolverton & Wolverton, of Camden, for defendant Anna E. Greenstone.

John Rauffenbart, of Atlantic City (Martin Bloom, of Atlantic City, of counsel), for defendant Kathryn Weiss.

Charles M. Phillips, of Trenton, for defendants, Imperial Council of the Ancient Arabic Order of the Nobles of the Mystic Shrine for North America, and Excelsior Consistory A. A. S. R. of the Valley of Camden, N. J.

Norman W. Harker, of Camden, for defendants Golden Slipper Square Club No. 470 of Philadelphia, and Chevra Thilim B'Nai Israel Synagogue.

Lloyd, Horn & Perskie, of Atlantic City, for defendant Betty Bacharach Home of Atlantic City, N. J.

Wertheimer & Hyman, of Atlantic City, for defendants Philadelphia Lodge No. 2, Benevolent and Protective Order of Elks.

Curry & Purnell, of Camden, for defendant Hospital of the Protestant Episcopal Church of Philadelphia.

Frank M. Travaline, Jr., of Camden, for defendant Crippled Children's Committee of Camden Lodge No. 239, Benevolent and Protective Order of Elks.

David T. Wilentz, Atty. Gen., for defendant State of New Jersey.

SOOY, Vice Chancellor.

Complainants, as executors under the last will and testament of Joseph Greenstone, deceased, seek instruction from this Court.

Under the terms of the Greenstone will, the widow was given a life interest in a small portion of the estate and practically the entire balance of the estate was left to charitable organizations, among others being the defendants Hiram Lodge No. 81, Free and Accepted Masons, Chestnut Hill, Philadelphia, Pa., The Imperial Council of the Ancient Arabic Order of the Nobles of the Mystic Shrine for North America, Excelsior Consistory, A. A. S. R. of the Valley of Camden, New Jersey, and Golden Slipper Square Club No. 470, Philadelphia, Pa.

Testator's property consisted in part of real estate in Pennsylvania. The widow and a niece of deceased, as sole next of kin and heirs at law of decedent, filed caveats against the probating of the will and the widow also elected to take contrary to the provisions of the will as to the real estate situate in Philadelphia.

The proceedings under the caveats aforesaid were adjourned from time to time and prior to any final hearing thereon the charitable organizations aforementioned entered into compromise agreements with the widow, Mrs. Greenstone, under the terms of which she agreed to and did withdraw her caveat and under the terms of which she further agreed to procure the withdrawal of the niece's caveat, which withdrawal was likewise effected.

The compromise agreements aforesaid result in the widow receiving approximately $69,000 from the four charitable organizations aforesaid, out of which, of course, she must satisfy the niece under her arrangement with the niece for the withdrawal of her caveat.

Complainants, as executors, pose five questions for this Court's consideration, namely: (1) Are the contracts made by the four charitable legatees with the widow, valid and enforceable? (2) If the answer to the first question is in the affirmative, are complainants, who are personally liable for Federal Estate Tax on that portion of the charitable legacies diverted to the widow, entitled to reimbursement from the widow, or should such taxes be paid, under the 17th paragraph of the will, from the decedent's estate; or, by reason of such diversion, should each of said charitable legatees reimburse complainants for such tax? (3) Are complainants entitled to reimbursement from the widow of Federal Estate Tax assessed against them, and for which they are personally liable, by reason of the devolution on the widow of one-half the Pennsylvania realty under her election? (4) Are complainants entitled to be reimbursed by the widow for Pennsylvania Inheritance Tax heretofore paid by First Camden National Bank and Trust Company, as administrator pendente lite of the estate of the decedent herein, on the one-half of the Pennsylvania realty which devolved upon her pursuant to her election? (5) Should the charitable legacies be administered by the Attorney General inasmuch as the charitable legatees have evinced their unwillingness to be bound by their respective trusts?

All beneficiaries under the Greenstone will were made parties defendant and in addition thereto the Attorney General and Kathryn Weiss, testator's niece and caveator as aforesaid, were likewise made parties defendant.

At the final hearing, pursuant to notice, defendant Kathryn Weiss made application to be permitted to file an answer, in which she reserved the right to move to strike the bill of complaint. This motion to file an answer out of time was opposed on the ground that Miss Weiss was not a necessary party to the bill, even though she had been made a party by the complainant, as above noted. The Court granted the application and permitted the filing of the answer.

Also at the final hearing counsel for the widow, pursuant to notice, moved to amend the answer theretofore filed in behalf of the widow by reserving therein a motion to strike. This application was not contested and the order was granted.

The motions to strike aforesaid are based on the following reasons: (1) That the 15th, 16th, 17th, 18th, 19th and 20th paragraphs of the first cause of action, and each of said paragraphs as they are repeated in the 2nd, 3rd, 4th, 5th and 6th causes of action set forth in the bill of complaint, are irrelevant and immaterial, are not germane to the issue and are so framed as to embarrass and delay a fair trial of this cause. (2) Complainants have no right or standing in this court to prosecute this suit. (3) Complainants are not alleged to have been or to be officers or members of the defendant charitable organizations or of any other charitable legatee named in the Greenstone will. (4) Complainants are not alleged to have any beneficial interest in any charitable trust created by the decedent, Joseph Greenstone. (5) Want of equity, in that the complainants are not alleged to be aggrieved.

The basic question for determination of any of the questions propounded by complainants is whether or not the compromise agreements aforesaid are valid. If they are invalid, there would be no Federal Tax assessable against the legacies of the charitable organizations, and if they are valid the question would be whether or not the assessment on the sums diverted by means of the compromise agreements should be paid by the charitable organizations or out of the funds of the estate, and as to the widow, the question of the payment or non-payment of Federal Taxes depends on the validity of the compromise agreements. This, however, is not so with reference to question 4, which deals with taxes assessed by the State of Pennsylvania by reason of the widow's election.

The Attorney General has filed the usual answer seeking the protection of the Court under any decree or order it may make.

The Greenstone will was probated after the withdrawal of the caveats aforesaid in the Atlantic County Orphans' Court and administration of the estate continues under the jurisdiction thereof.

At the outset it is argued by Mrs. Greenstone and Miss Weiss that the executors as such have no standing to seek relief because it is alleged that (1) ‘complainants as executors have no right or standing to maintain this suit questioning the validity of agreements made by trustees of a charitable trust, or, the disposition of any of the funds of said trust by the trustees;’ (2) ‘the advice and findings sought by the complainants relate to matters beyond the duties of the executors;’ (3) ‘the relief sought by complainants relates to matters that can and should be disposed of in the Orphans Court in the administration of the estate. It is neither necessary or proper to pray this court to advise with...