Hackensack Trust Co. v. Hackensack Hosp. Ass'n

• Decision Date: 18 March 1936
• Citation: 183 A. 723
• Parties: HACKENSACK TRUST CO. v. HACKENSACK HOSPITAL ASS'N et al.
• Court: New Jersey Court of Chancery

183 A. 723

HACKENSACK TRUST CO.

v. HACKENSACK HOSPITAL ASS'N et al.

Court of Chancery of New Jersey.

March 18, 1936.

Syllabus by the Court.

1. A provision in a will, on the contingency that testatrix and her daughter "perish in a common disaster," held to include the death of a mother and daughter as a result of the same accident although the daughter survived the mother by several hours.

2. The provision in a will for a bequest of personal property, to be distributed in accordance with a memorandum furnished by testatrix, held void under the circumstances disclosed, and the void bequest held to fall into the residuary estate.

Suit by the Hackensack Trust Company, as executor of the last will and testament of Flora Curry Adams, deceased, against the Hackensack Hospital Association and others.

Decision in accordance with opinion.

Wurts & Plympton and Robert O. Bentley, Jr., both of Hackensack, and Roger Nutt, of New York City, for Hackensack Trust Co.

Wendell J. Wright, of Hackensack, for Hackensack Hospital Ass'n and others.

Child, Riker, Marsh & Shipman, of Newark (Jehiel G. Shipman, of Newark, of counsel), for Institute for Crippled and Disabled.

William E. Blackman, of Trenton, for New Jersey Children's Home Soc.

Mackay & Mackay, of Hackensack (Howard Mackay, of Hackensack, of counsel), for May O. Ash.

Max I. Mintz, of Newark, for Lavainia Sharwell's Estate and Ruth S. Braunworth.

Sullivan & Sullivan, of Passaic, for defendant Caney Creek Community Center, Inc.

LEWIS, Vice Chancellor.

This suit is brought to obtain the construction of the will of Mrs. Flora Curry Adams. She and her daughter, Dr. Flora Adams, were in an automobile accident in which they were fatally injured. They were taken to a hospital, where testatrix died within an hour and the daughter about thirteen hours afterwards. Both of them were unconscious from the time of the accident until their respective deaths.

By the clause of the will which requires construction, the testatrix in the seventh clause provided as follows :

"All the rest, residue and remainder of my estate I give, devise and bequeath unto my beloved daughter, Dr. Flora Adams, absolutely, unto her, her heirs and assigns forever, but should my said daughter predecease or not survive me or should she and I perish in a common disaster, she leaving no issue her surviving, I give, devise and bequeath all of my residuary estate as follows:

"(a) all of my jewelry and personal chattels excepting cash and securities unto my dear friends, Edna Phillipps and Elizabeth Phillips, or the survivor of them, to be distributed by them according to a memorandum furnished by me."

By subsequent subdivisions of the seventh clause, testatrix gave and bequeathed certain specific legacies to personal friends and then distributed the remainder among various charities. The specific legacies to friends were later modified by a codicil which, however, has no effect on the principles involved in the construction of the will.

The daughter, Dr. Adams, herself had made a will containing a provision as to survivorship similar to that in the will of her mother, providing that in case the mother did not take the residuary estate it should be distributed in part at least among certain charities.

There are two questions involved in this suit. The first is as to whether the daughter took the residuary estate of the mother. The second question is as to the validity and effect of paragraph (a) of the seventh clause.

The complainant trust company is executor of both wills. As executor for the mother, its sole duty is to see that the provisions of the will are carried out; while as executor of the estate of the daughter, it is a claimant of the residuary estate of the mother. It has accordingly and properly arranged for different counsel to represent the defendant interests. The various persons and charities who may take under the various interpretations of the will have been brought in as parties, and several of them have submitted memorandums to the court as have the counsel for the complainant in its divers capacities. The main question is as to whether within the meaning of the seventh clause of the will the mother and daughter perished in a common disaster. Since in fact the daughter did not die until several hours after the mother, the first two contingencies of the three enumerated in the seventh clause did not occur, since the daughter did not "predecease" the mother and did "survive" the mother. Therefore, unless the daughter and the mother perished in a common disaster, the residuary estate passed to the daughter and therefore the alternative bequests set up in the seventh clause have no effect.

The briefs submitted by the various counsel, which show evidence of long and careful search among the authorities, unite in stating that they had been unable to find any judicial interpretation of the expression, "perish in a common disaster." There have, of course, been numerous cases in which it has become established that when two persons die by reason of the same disaster, in which shipwreck, train wreck, and automobile accident are frequent examples, there is no presumption of survivorship by reason...