Guarantee Trust Co. v. Miller

• Decision Date: 06 March 1933
• Citation: 164 A. 859
• Parties: GUARANTEE TRUST CO. v. MILLER et al.
• Court: New Jersey Court of Chancery

164 A. 859

GUARANTEE TRUST CO.

v. MILLER et al.

Court of Chancery of New Jersey.

March 6, 1933.

Syllabus by the Court.

Wills examined, and held:

(1) That the gift of the remainder vested upon the death of the life tenant.

(2) Words "nearest of kin" defined.

Suit by the Guarantee Trust Company, substituted administrator with the will annexed of the estate of Elias Wright, deceased, and of the Estate of Julia A. Wright, deceased, against Laura Miller and others.

Decree in accordance with opinion.

Cole & Cole, of Atlantic City, for complainant.

W. Earle Miller, of Woodbury, for defendants Laura W. Miller et al.

William M. Clevenger, of Atlantic City, for defendants Elizabeth Wright Clark et al.

John D. McMullin, of Atlantic City, for defendants Henry Ingalls et al.

Walter K. Trumbull, of Newark, for defendants Myra D. Fletcher et al.

William I. Garrison, of Atlantic City, for defendants Rollin Cale et al.

Ralph N. Kellam, of Camden, for defendants Somers C. Wright et al.

Herbert H. Schettler, for defendant Marjorie W. Huffman.

INGERSOLL, Vice Chancellor.

The complainant, the Guarantee Trust Company, is the substituted administrator, c. t. a., of the estate of Elias Wright and the estate of Julia A. Wright.

Elias Wright died on January 2, 1901, and Julia A. Wright, his widow, died on November 27, 1906. They left them surviving a daughter named Frances W. Sooy, who, after the making of said wills, married, and at the time of her death was named Frances W. Clark. She died on August 8, 1931, intestate, without issue, and the estates of her father and mother are now ready for distribution.

Paragraph 5 of the bill reads as follows:

"The complainant is in doubt as to whom the estate should be distributed. Among other doubts, the first is, as to the time of the taking effect of the will as to the nearest of kin to the husband of Julia A. Wright, and the nearest of kin of the said Julia A. Wright; and secondly, as to which law of distribution is controlling. Is it the nearest of kin of the said husband of the said Julia A. Wright as of the time of the death of Julia A. Wright, and if so, are representatives of the nearest of kin of said Wrights to share with their ancestor, or are only those who are next of kin at the time of the death of said Julia A. Wright to take?

"Does the statute touching distribution at the time of the making of the wills or at the time of the death of Julia A. Wright govern?

The pertinent part of the will of Elias Wright reads:

"Sixth:—To my wife, Julia A. Wright, in lieu of her right of dower, I give the income of the remainder of all property belonging to me at the time of my death, of whatsoever kind, character and description and wheresoever situate. By 'income' is intended interest and rentals, and not the purchase money price at which any part of my estate may be sold.

"Seventh:—To my said wife, I entrust the care, maintenance and comfortable support of my daughter Mrs. Prances W. Sooy, during the time my daughter may remain a widow, and thereafter such support only shall be offered her, as my said wife may approve.

"Eighth:—If in the opinion of my said wife the income mentioned in the above paragraph 'Sixth' should not be sufficient for the comfortable support and maintenance of herself during her life time, and that of my said daughter, as mentioned in paragraph 'Seventh', she shall have the right to impair the principal sum only for such support and maintenance.

"Ninth:—The income from such of the property of which I may die seized, as remains after the death of my said wife, shall be used for the comfortable support and maintenance of my said daughter, during her life, and should that income in the opinion of said Executors, not be sufficient for such maintenance, said Executors shall have the right to impair the principal sum, only, for such support and maintenance. Provided that hot more than one dollar per day shall be so allowed for my said daughter's support.

"Tenth:—In the event of there being any property standing to the credit of my estate, at the death of my said daughter, the same shall belong equally to her children if any there be:—but in case she should die without issue, such property may be sold by said Executors, at public or private sale, as said Executors shall think will yield the largest sum, and the proceeds thereof shall be divided as follows; that is to say:—two-thirds thereof shall be equally divided between my nearest of kin, under the laws of the said state, and one-third thereof shall be equally divided between the nearest kin to my said wife, under said laws or in lieu of a sale as stated in the foregoing part of this 'Tenth' paragraph said Executors may at their option divide said Estate and distribute in kind in manner as aforesaid giving to each legal claimant such property as said Executors may regard most suitable for such, claimants:—the value of which property, to set off to each shall in the opinion of said Executors be equal to such claimants interest in said estate, distributed in manner aforesaid, and such a division may at the option of said Executors be absolute to all such claimants or such property, whether in cash or in kind may be given in trust to some person or company, for the benefit of any such claimant as said Executors may regard as most judicious for said claimants benefit. Provided that neither Avesta Green, a daughter of my brother Bradford Wright, nor any of her children shall be regarded as beneficiaries under this will."

This will was dated September 6, 1899.

The will of the said Julia A. Wright is in substantially the same language as that of her husband, and is dated November 15, 1898.

The real and personal estate is blended in one gift; therefore both species of property are subject to the rule applicable to personalty. Scudder's Ex'rs v. Vanarsdale, 13 N. J. Eq. 109. Where an executor is directed to sell land and divide the proceeds, the land is converted into personal property. Cranstoun v. Westendorf, 91 N. J. Eq. 34, 108 A. 776. It is a well-settled rule of construction that...