Herbert v. Cent. Hanover Bank & Trust Co., s. 231-233.

• Decision Date: 22 October 1942
• Docket Number: Nos. 231-233.,s. 231-233.
• Citation: 28 A.2d 544,132 N.J.Eq. 445
• Parties: HERBERT v. CENTRAL HANOVER BANK & TRUST CO. et al.
• Court: New Jersey Supreme Court

28 A.2d 544

132 N.J.Eq. 445

HERBERT

v. CENTRAL HANOVER BANK & TRUST CO. et al.

Nos. 231-233.

Court of Errors and Appeals of New Jersey.

Oct. 22, 1942.

Appeal from Court of Chancery.

Suit by John W. Herbert, III, substitutionary administrator with the will and codicil annexed of Jean R. Herbert, deceased, against the Central Hanover Bank & Trust Company and the Central Hanover Bank & Trust Company, executor of the last will and testament of Kate Herbert Kelly, deceased, and others, for the construction of the will of Jean R. Herbert, deceased. From an adverse decree, 131 N.J.Eq. 330, 25 A.2d 7, the Central Hanover Bank & Trust Company, executor of the last will and testament of Kate Herbert Kelly, deceased, and others, appeal.

Affirmed.

Carl M. Herbert, of Manasquan, for complainant-respondent.

McCarter, English & Egner, of Newark (Arthur F. Egner, of Newark, of counsel), for defendants-respondents Central Hanover Bank & Trust Co. et al., executors of last will and testament of John W. Herbert.

Lindabury, Depue & Faulks, of Newark (Emory C. Risley, of Newark, of counsel), for defendant-appellant Central Hanover Bank & Trust Co., executor of last will and testament of Kate Herbert Kelly.

Tiffany & Massarsky, of Hoboken, for defendant-respondent J. Raymond Tiffany, executor of estate of Gertrude Ely.

Quinn & Doremus, of Red Bank (Thomas P. Doremus, of Red Bank, of counsel), for defendants-respondents Wm. Ely, executor of the estate of Gertrude Ely, and Mary S. VanKirk Pryal.

Collins & Corbin, of Jersey City (Robert J. Bain, of Jersey City, of counsel), for defendants-appellants Hazel Herbert Mann, Clyde H. Mann, Agnes Herbert Krull, Mary Herbert Krull, and Frank Krull.

Mark A. Sullivan, of Jersey City, for defendants-appellants Paul P. Herbert and Ora E. Herbert.

Edwin P. Longstrect, of Asbury Park, for defendant-appellant Methodist Home for the Aged of New Jersey at Ocean Grove.

Lindabury, Steelman, Zink & Lafferty, of Newark (Andrew J. Steelman, of Newark, of counsel; Wm. Rowe, of Newark, on the brief), for defendants-appellants Trustees of Rutgers College in New Jersey and Women's College, a subsidiary of Rutgers College.

PER CURIAM.

This appeal had to do with construction of the will and codicil of Jean R. Herbert, deceased.

The decree under review will be affirmed for reasons, in the main, expressed in the excellent opinion of Vice Chancellor Berry, reported in 131 N.J.Eq. 330, 25 A. 2d 7. This court unanimously concurs in the view that Kate Herbert Kelly, sister of the testatrix, took a life estate in the residue of the estate, under the fourteenth paragraph of the will.

In the construction given to the codicil (which had to do only with the residuary estate) we agree with the learned Vice Chancellor that John W. Herbert (since deceased), a brother of the testatrix, was, under the circumstances, i. e., the condition under which the residue was to be divided into twenty parts and which failed, entitled to the entire residue upon the death of Kate Herbert Kelly, who enjoyed a life estate therein.

As the court below pointed out, the law "abhors intestacy" and that the testatrix intended that...