Herbert v. Cent. Hanover Bank & Trust Co.

• Citation: 131 N.J.Eq. 330,25 A.2d 7
• Decision Date: 13 March 1942
• Docket Number: 139/269.
• Parties: HERBERT v. CENTRAL HANOVER BANK & TRUST CO.
• Court: New Jersey Court of Chancery

25 A.2d 7

131 N.J.Eq. 330

HERBERT

v. CENTRAL HANOVER BANK & TRUST CO.

139/269.

Court of Chancery of New Jersey.

March 13, 1942.

Suit by John W. Herbert III, substitutionary administrator with the will and codicil thereto annexed of Jean R. Herbert, deceased, against the Central Hanover Bank and Trust Company and others, as executors of the last will and testament of John W. Herbert, deceased, and others for the construction of the will of Jean R. Herbert, deceased.

Decree in accordance with opinion.

Carl M. Herbert, of Manasquan, for complainant.

Lindabury, Depue & Faulks, of Newark, for defendants Central Hanover Bank & Trust Co.

McCarter, English & Egner, of Newark, for defendant Central Hanover Bank & Trust Co., and others.

Lindabury, Steelman, Zink & Lafferty, of Newark, for defendant Trustees of Rutgers College in New Jersey.

Edwin P. Longstreet, of Asbury Park, for defendant Methodist Home for the Aged in New Jersey.

Mark A. Sullivan, of Jersey City, for defendant Paul P. Herbert and another.

Collins & Corbin, of Jersey City, for defendant Hazel H. Mann and others.

Quinn & Doremus, of Red Bank, for defendant William Ely and another.

Tiffany & Massarsky, of Hoboken, for defendant J. Raymond Tiffany.

BERRY, Vice Chancellor.

By this bill complainant seeks the construction of the last will and testament of Jean R. Herbert, who died, testate, a resident of Monmouth County, New Jersey, on January 7th, 1934. Her will was dated June 11, 1926, a codicil thereto, January 5, 1927, and they were duly probated before the Surrogate of Monmouth County on June 20, 1934. By her will, testatrix appointed her brother, John W. Herbert, the father of complainant, and her sister, Kate Herbert Kelly, executor and executrix thereof. Kate Herbert Kelly renounced, but John W. Herbert qualified as executor and administered the decedent's estate until his death on August 26, 1934. Thereafter his son John W. Herbert III, who is the complainant in this proceeding, was appointed substituted administrator c. t. a, and he has since that time administered the estate which consisted of both realty and personalty, inventoried, as of the date of testatrix' death, at $338,924.94. The complainant, as substituted administrator c. t. a. has now filed his final account in the Monmouth County Orphans' Court, and is prepared to make distribution of the estate, instructions as to which are also sought.

While the will and codicil, as one instrument, must be read from its four corners (Trustees of Princeton University v. Wilson, 78 N.J.Eq. 1, 78 A. 393; Coffin v. Watson, 78 N.J.Eq. 307, 79 A. 275; Supp v. Second National Bank & Trust Company, 98 N.J.Eq. 242, 130 A. 549), and construed as one complete document (Struble v. Van Blarcom, 130 N.J.Eq. 467, 22 A.2d 875) only the fourteenth paragraph of the will, and the codicil, need be here recited, as it is around the provisions of those two portions of the will that this controversy centers. The following is a reproduction as near as may be in typewriting or print of these portions of the will as written by the testatrix. The spacing, words to the line, punctuation and indentation of paragraphs, etc. are hers.

WILL.

"Fourteenth: I give and bequeath to my sister, Kate Herbert Kelly, all the rest, residue and remainder of my real and personal estate where soever situate and whatsoever the same may be as well that which I now have as that which I may hereafter acquire, and die seized possessed of or entitled to and not herein before bequeathed to her for her lifetime.

I also give to my sister my few personal belongings namely:—my jewelry, books, one dozen silver teaspoons given me by my maternal grandmother, marked J.R.W. to J.R.H. furs and other wearing apparel and my four antique mahogany tables"

CODICIL.

"I, Jean R. Herbert, of the Township of Marlboro County of Monmouth, State of New Jersey, do make this my codicil, hereby confirming my last will made on the eleventh day of June one thousand nine hundred and twenty six so far as this codicil is consistent therewith. If my sister Kate Herbert Kelly dies before I do it is my wish that my estate be divided into twenty (20) equal parts and given as follows: Two twentieths (2/20ths) to the Trustees of Rutgers College in New Jersey, a body corporate of the State of New Jersey at New Brunswick, N.J. to the memory of my brother, Richard W. Herbert, in trust, the principal to be paid by my executors hereinafter mentioned, and to be received by the Trustees of said Corporation, in trust, the amount to be invested and kept invested and the income and interest therefrom to be used each year for the maintenance of scholarships in agriculture to be awarded by the Faculty of said college to worthy young men.

"Two twentieths (2/20ths) to The Womans College, a subsidiary of Rutgers College of New Brunswick, N.J. the amount to be invested and to be kept invested with the income therefrom and to be used each year for the maintenance of scholarships to be awarded by the Trustees of Rutgers University.

"One twentieth (l/20th) to the Methodist Episcopal Home for the Aged of New Jersey at Ocean Grove to the memory of my brother, Richard W. Herbert, deceased.

"Two twentieths (2/20ths) to be equally divided among the daughters and daughter in law (wife of Paul Herbert) of of my deceased brother William H. Herbert.

"One twentieth (l/20th) to be equally divided among the following persons, viz:-—Dr. Pauline Long, her sister, Dorothy Long, Mary S. VanKirk and Gertrude Ely, if the last named person be not living at the time of my death the bequest is to be given to her husband William H. Ely. If one or more persons named in the last clause excepting Gertrude Ely who may have pre-deceased me it is my will that the bequest be given to my brother John W. Herbert, his heirs and assigns.

"I give and bequeath to my brother John W. Herbert all the rest, residue and remainder of my real and personal estate.

"In witness whereof I have hereunto set my hand and seal this fifth day of January, in the year of our Lord one thousand nine hundred and twenty seven.

"Signed, sealed and published and declared by the testatrix to be her last codicil in our presence who in her presence and in the presence of each other and at her request have hereunto subscribed our names as witnesses.

"Jean R. Herbert

"Emma L. Haviland

"Edward G. Forman"

The will was written by the testatrix in her own handwriting in the office of a lawyer in Freehold, New Jersey, from whom she obtained a printed skeleton form; but she did not consult him with respect to any of its provisions. The composition was entirely her own. So, also, as to the codicil which was written on the same form blank at the foot of the will and on a blank sheet of paper pasted thereon, except that the codicil was written outside the lawyer's office and brought into his office by testatrix for execution. She received neither assistance nor advice from the lawyer in the preparation of either will or codicil and asked none; and the lawyer knew nothing as to the contents of either. The testatrix was an educated and intelligent woman, but unskilled in the law. It is evident from the language of the will and codicil that she had some knowledge of the use of legal terms and testamentary language, but "a little knowledge is a dangerous thing".

The issues presented by this controversy are:

1. Did Kate Herbert Kelly take an absolute estate or only a life estate in the residue under the provisions of paragraph Fourteenth of the will?

2. Did testatrix die intestate as to the residue of her estate.

(a) under the will? (b) under the codicil?

3. Was the codicil conditional in whole or in part, and did it become effective in whole or in part?

The several counsel of the various parties to this controversy are hopelessly divided on these questions and there are almost as many different theories as to the proper construction of this document as there are counsel of record.

I shall consider the issues in their order as above stated. The rules of construction here applicable are elementary and need not be recited. They are stated at some length in Supp v. Second National Bank & Trust Company, supra, and First National Bank v. Levy, 123 N.J.Eq. 21, 195 A. 820.

1. Did Kate Herbert Kelly Take an Absolute Estate or Only a Life Estate in the Residue under the Provisions of Paragraph Fourteenth of the Will?

Testatrix' only bequest to her sister Kate Herbert Kelly is that contained in the fourteenth paragraph of the will. She is not mentioned in any of the thirteen preceding paragraphs. The fifteenth paragraph provides only for the appointment of the executor and executrix. The sixteenth and concluding numbered paragraph is one of revocation of prior wills. Both the original will and codicil, and a photostatic copy thereof, were offered in evidence and are now before me. A careful examination of these exhibits will show that testatrix was neither careful nor accurate in her punctuation, although she used appropriate language to express her apparent intention. It is contended by some of the parties to this controversy that the language "I give and bequeath to my sister Kate Herbert Kelly all the rest, residue and remainder of my real and personal estate * * * as well that which I now have as that which I may hereafter acquire and die seized possessed of or entitled to and not hereinbefore bequeathed to her for her lifetime", as contained in the above recited paragraph of the will, gave to Kate Herbert Kelly an absolute estate. Counsel so contending argue that the phrase "and not hereinbefore bequeathed to her for her lifetime", "operates as a limitation upon the definition of the rest, residue and remainder which immediately precedes it and not as a limitation upon the estate previously granted". On the other hand, counsel for many of the parties contend that the words "and not hereinbefore bequeathed to her for her lifetime" should not...