Greene v. Schmurak, C--1036
Decision Date | 26 January 1955 |
Docket Number | No. C--1036,C--1036 |
Parties | Dora GREENE et al., Plaintiffs, v. Leon SCHMURAK et al., Defendants. . Chancery Division |
Court | New Jersey Superior Court |
Reuben P. Goldstein, Jersey City, attorney for plaintiffs.
Milton T. Lasher, Hackensack, attorney for defendants.
This is an action for the construction of the will of Rose Schmurak who died on January 4, 1952. The testatrix was survived by three children, Dora Greene, Leon Schmurak and Robert Schmurak. The latter two and Beatrice Alterowitz were appointed and qualified as executors.
The provisions of the will which give rise to this action are as follows:
Mrs. Greene has two children, and they join with her as plaintiffs in contending that she took in fee 50% Of the residue of her mother's estate.
This case presents a problem that arises in varying forms when a seemingly inconsistent or repugnant disposition of property is made between a first and subsequent takers. In Trafton v. Bainbridge, 125 N.J.Eq. 474, 6 A.2d 209 (E. & A.1939), the court referred to three rules which had been developed to govern testamentary disposition of this kind and cited cases in support thereof. The first is that where there is a devise or a bequest of property to A, in terms indicating clearly that a fee simple or an absolute estate is intended to be given, a fee passes; and that a gift over to B, at A's death, of the same property or what remains of it, is invalid and passes nothing. The second is that where a bequest or devise to A is in terms indicating clearly that only a life estate is intended to be given and although A receives a power to absolute disposal of the property without any limit or restriction as to the time or manner of its execution, A takes only a life estate with a power of disposition, and a subsequent gift to B, upon A's death, of such part of the property as remains undisposed of, is valid and effective. The third is that where there is a devise or bequest to A, in general or indefinite terms only, expressing neither a fee nor a life estate, and there is given to A an unlimited power of disposal, and there is a subsequent devise of the same property or what may remain of it to B, upon A's death, the devise or bequest to A is construed to pass a fee and the gift over to B is invalid. Judge Clapp in 5 N.J. Practice, secs 233, 235 and 236, discusses these rules and the cases supporting them as well as some that express a differing view.
In the dissenting opinion in Fox v. Snow, 6 N.J. 12, 76 A.2d 877 (1950), by Chief Justice Vanderbilt, which criticized the technical rule of law which there defeated the plain intent of a...
To continue reading
Request your trial-
Greene v. Schmurak
...showed that defendants' primary and dominant intention was to insure a monthly income to Mrs. Greene, for life. Greene v. Schmurak, 34 N.J.Super. 115, 111 A.2d 520 (Ch.Div.1955). Judgment was entered declaring that defendants each had a 25% Interest in the residue in fee, subject to being d......