Girard Trust Co. v. Schmitz

• Decision Date: 06 May 1941
• Docket Number: 122/632.
• Parties: GIRARD TRUST CO. v. SCHMITZ et al.
• Court: New Jersey Court of Chancery

20 A.2d 21

129 N.J.Eq. 444

GIRARD TRUST CO.

v. SCHMITZ et al.

122/632.

Court of Chancery of New Jersey.

May 6, 1941.

[Copyrighted material omitted.]

Syllabus by the Court.

1. Any individual, of full age and mentally competent, may make a will disposing of his property as he sees fit, unless in contravention of law, or of public policy, which is the foundation of all law.

2. The right to dispose of one's property by will is neither a natural nor a constitutional right. It is a purely statutory right, but it has been recognized in New Jersey from the earliest Colonial times.

3. The power to dispose of property by will includes the right to attach to testamentary gifts such terms, conditions, limitations or restrictions as the testator pleases, provided they are not contrary to public policy or forbidden by law.

4. A testamentary bequest or devise upon condition precedent does not vest until the condition is performed.

5. Such a bequest or devise upon condition subsequent vests immediately upon the death of the testator, subject to being defeated upon a breach of the condition.

6. The acceptance of a legacy to which a legal condition is annexed makes that condition binding.

7. A forfeiture clause in a will is to be strictly construed against a forfeiture and reasonably construed in favor of the beneficiary.

8. Forfeiture will not result from the violation of a void condition.

9. Any testamentary disposition of property contra bonos mores is void as against public policy.

10. Whatever is bad as a covenant, or a contract, is also bad as a condition.

11. The term "public policy" admits of no exact definition; it changes as the law changes and now applications of old principles are required; but the principles upon which it is based are definite and unchangeable. In general "whatever tends to injustice or oppression, restraint of liberty, restraint of legal right; whatever tends to the obstruction of justice, a violation of the statute, or the obstruction or perversion of the administration of the law" (Brooks v. Cooper, 50 N.J.Eq. 761, 26 A. 978, 21 L.R.A. 617, 35 Am.St.Rep. 793); whatever contravenes any established interest of society, or conflicts with the morals of the time, when embodied in and made the subject of a contract, renders such contract void as against public policy.

12. The sources of the public policy of New Jersey are the constitutions, federal and state, the common law and equity rules of England as adopted by us and as modified by the Legislature, our statutes, and judicial decisions.

13. A condition attached to a testamentary gift in trust to certain named brothers and sisters of the testator, that they abstain from social and family intercourse with a brother and sister expressly disinherited by the will, and their respective spouses and children, is void as against public policy. The condition here involved held void for uncertainty also.

14. Where the testator provides for alternative gifts "in the event that a court of competent jurisdiction shall declare invalid" a condition attached to a legacy, the question touching the validity of the condition must first be determined. If the condition is held void the alternative gifts become effective.

Suit by the Girard Trust Company, executor and trustee under the will of Robert Schmitz, deceased, against Walter A. Schmitz and others for construction of certain provisions of the will and for instructions thereon.

Decree advised in accordance with opinion.

Boyle & Archer, of Camden, for complainant.

Joseph J. Summerill, Jr., of Camden, amicus curiae.

BERRY, Vice Chancellor.

This suit concerns a will of hate which was executed by Robert Schmitz, late of Camden County, who died on or about December 26, 1935. The will was executed in 1916 and a codicil thereto in 1924. It was probated on December 9, 1937, in the Camden County Surrogate's Office, and the complainant, as the executor and trustee thereof, presently seeks the construction of certain of its provisions, and instructions thereon.

The testator had six brothers and sisters at the date of the execution of his will, and for two of them, his brother Otto Schmitz and his sister Emilie Schmitz Blizzard, he appears to have had an abiding hate. What his feelings towards the others were is a matter of conjecture, but he made them conditional beneficiaries of his will. Whether because he loved these latter more, or because he desired to use them as instruments to perpetuate his hatred for the other two, may best be judged from a reading of his will. Only a portion of the Third Clause, and the Fourth, Sixth and Seventh Clauses of the will, and the Second, Third and Fourth Clauses of the codicil are necessarily pertinent to the present inquiry, and they are as follows:

"Third. All the rest, residue and remainder of my estate of whatsoever kind, whether real, personal or mixed, and wheresoever situate, and whether now owned or hereafter acquired by me, I give, devise and bequeath unto Girard Trust Company, or corporation of the City of Philadelphia, State of Pennsylvania, and its successors and assigns, in Trust Nevertheless, for the following uses and purposes, that is to say:

"In Trust, to hold, manage, rent, invest, reinvest and keep invested the corpus or principal thereof, and to demand, collect and receive the rents, interest, dividends and income therefrom and, after the deduction of all necessary charges and expenses, to pay over the net income from the date of my death, subject to the conditions and limitations as hereinafter set forth—

"One-half part thereof unto my brother, Walter A. Schmitz, One-sixth part thereof unto my sister, Bertha Schmitz, One-sixth part thereof unto my sister, Tillie Schmitz, and One-sixth part thereof unto my brother, Louis Schmitz, for and during the term of twenty years from the date of my decease, unless prior thereto my brother Otto Schmitz and his wife and my sister Emilie Schmitz Blizzard and her husband, shall all be deceased without issue, in which latter event, I direct that distribution of my said residuary estate shall be made as if the said twenty years had expired." (Then follow certain provisions contingent upon the deaths of the respective legatees, but it is unnecessary to recite them here.)

"In Trust, upon the expiration of twenty years from the date of my death, upon their filing with the trustee under this my will a written pledge that they have complied and will continue to comply strictly with the conditions of this my Will hereinafter fully set forth, or upon the death of my brother Otto Schmitz and his wife and my sister, Emilie Schmitz Blizzard and her husband, without issue any of them surviving, to pay over and distribute the corpus or principal of my said residuary estate absolutely—

"One-half part thereof unto my brother, Walter A. Schmitz, One-sixth part thereof unto my sister, Bertha Schmitz, One-sixth part thereof unto my sister, Tillie Schmitz and One-sixth part thereof unto my brother Louis Schmitz,

"and in the event that any of my said brothers or sisters shall refuse or neglect to file such pledge with my said trustee, their share of my residuary estate shall be distributed unto my remaining brothers and sisters as if the one so refusing or neglecting to file such pledge were deceased without issue." (Then follow other contingent provisions not now pertinent.)

"Fourth: The foregoing provisions in this my Will for the benefit of my brother Walter A. Schmitz, my sister Bertha Schmitz, my sister Tillie Schmitz and my brother Louis Schmitz, or their children, are made upon the express provision and condition that no one of them shall at any time after my death and after notice of this provision of my will shall have been made known to them by my Executor have any communication or intercourse verbally or in writing, directly or indirectly, nor live in the same house or under the same roof with my brother Otto Schmitz, his wife or children, or my sister Emilie Schmitz Blizzard, her husband or children, except such communication as shall be absolutely necessary in the settlement of my father's estate, and for no other purpose. And I direct that my said Executor shall furnish a copy of this my Will to each of my said brothers, Walter A. Schmitz and Louis Schmitz, and to my said sisters, Bertha Schmitz and Tillie Schmitz, and to the children of any of my said brothers and sisters, if any of my said brothers and sisters shall be deceased.

"In the event that any of my said brothers and sisters shall have such communication or intercourse or live in the same house or under the same roof with my said brother Otto Schmitz, his wife or children, or my said sister Emilie Schmitz Blizzard, her husband or children, I direct that the interest of such brother or sister so having communication or intercourse or living under the same roof with my said brother Otto Schmitz, his wife or children, or my said sister, Emilie Schmitz Blizzard, her husband or children, shall forthwith cease and determine as if such brother or sister were deceased without issue, on the date of such intercourse or communication, and distribution of income or principal shall thereafter be made as if such brother or sister were actually dead without issue. And I hereby authorize and empower the Executor of and Trustee under this my will to pay to any person or persons furnishing my said Executor and Trustee with conclusive evidence of communication, intercourse or place of abode as herein provided against, the sum of One Hundred Dollars ($100) my Executor and Trustee to be sole judge of the conclusiveness of the evidence, and as to the necessity for the payment of the said sum or sums of One Hundred Dollars.

"And in the event that all of my said brothers and sisters shall not accept the conditions of this my will, then I give, devise and bequeath absolutely my entire residuary estate unto the Hahnemann Medical College and Hospital of...