Hogate v. Hogate, 139/669.

• Citation: 132 N.J.Eq. 480,28 A.2d 769
• Decision Date: 17 November 1942
• Docket Number: 139/669.
• Parties: HOGATE v. HOGATE et al.
• Court: New Jersey Court of Chancery

28 A.2d 769

132 N.J.Eq. 480

HOGATE

v. HOGATE et al.

139/669.

Court of Chancery of New Jersey.

Nov. 17, 1942.

[Copyrighted material omitted.]

Syllabus by the Court.

Words "heirs and legal representatives" used by testator in his will in disposing of personalty held to mean those entitled under the statute of distribution and not their executors and administrators.

Suit by Harry A. Hogate against Jonathan Hogate, Jr., and another, as executors and trustees under the last will and testament of Jonathan Hogate, Sr., deceased, for a construction of the will.

Decree in accordance with opinion.

Lynwood Lord, of Woodbury, for complainant.

W. Orvyl Schalick, of Salem, for defendants.

SOOY, Vice Chancellor.

Complainant seeks a construction of the will of Jonathan Hogate, Sr., deceased, to the end that a decree may be entered declaring that the trusts set forth in paragraphs 8 and 10 of the will "are dry and inactive and to adjudge that complainant is entitled to receive the principal of said trusts."

Paragraphs 8 and 10 of the will are as follows:

"Eighth—I do hereby order that my executors shall set aside the sum of Fifteen hundred dollars ($1500.00), to be, by them, held in trust for the use of my son, Harry A., and I hereby further order that from out of the income and principal of said trust fund, my trustees shall pay to my said son, Harry A., the sum of Three dollars ($3.00) each and every week for and during the term of his life or until said trust fund has been exhausted. If, upon the death of my said son, Harry A., there remain any portion of said trust fund, then I hereby order that the same shall go to the legal heirs or representatives of my said son, Harry A."

"Tenth—All the rest, residue and remainder of my estate, I do hereby give, devise and bequeath unto my children, share and share alike, and I hereby further order that if any of my said children shall predecease me, the share of said child shall go to his or her heirs or legal representatives. I hereby further order, however, that the share of my son, Harry A., shall be retained by my executors and by them held in trust in the same manner as the bequest to him set out in paragraph Eighth."

The basis of complainant's contention with respect to the right of the cestui to the corpus of the estate calls for a construction of the will taken as a whole. Complainant's insistment is that when testator provided in item 8 of the will: "If, upon the death of my said son, Harry A., there remain any portion of said trust fund, then I hereby order that the same shall go to the legal heirs or representatives of my said son, Harry A.," he used the word "representatives" in its common acceptation and that it means the executors and administrators of the cestui and not those who would take under the statute of distribution, with the result that Harry is presently entitled to the corpus, so that the trust is passive. Camden Safe D. & T. Co. v. Guerin, 89 N.J.Eq. 556, 105 A. 189, and Lewin on Trusts, Vol. 2, p. 858, par. 689.

In Howell v. Gifford, 64 N.J.Eq. 180, at page 190, 53 A. 1074, at page 1077, Vice Chancellor Stevens said that the signification of the words "legal representatives," when applied to personalty, is executors and administrators, and when applied to real estate, "those upon whom the law casts the real estate immediately upon the death of the ancestor." But he also pointed out that the question to be decided in all such cases was dependent upon the context of the will, i. e., whether it indicated that the testator intended to use the words "legal representatives" in any other than their legal signification, and he cites Stockdale v. Nicholson, L.R. 4 Eq. 359, and says, at page 188 of 64 N.J.Eq., at page 1078 of 53 A.: It is "settled that the words 'personal representatives,' 'legal personal representatives,' and 'legal representatives,' when applied to personal estate, unaccompanied by explanatory or controlling words, were to be construed as being equivalent to 'executors and administrators,' says that slight circumstances had been allowed to control the general effect of those words."

Page on Wills, Lifetime Edition, sec. 1034, points out that the word "representatives" is a word which "may mean almost anything, especially in wills," that while the primary meaning is that of "legal personal representatives," that is, of executors and administrators, still "the context and surrounding circumstances may show that 'representatives' means 'lineal descendants' or children, or the nearest blood relatives." In support of the text he cites Howell v. Gifford, supra.

In Leavitt v. Dunn, 56 N.J.L. 309, at page 311, 28 A. 590, 44 Am.St.Rep. 402, the Court said that the word "heirs" has "quite uniformly" been construed in New Jersey "according to the nature of the property dealt with, and without much regard as to whether it was used in designating original or substituted beneficiaries. When employed in the disposition of personal property, it has been generally deemed to indicate the persons appointed by the statute to succeed to such property." Again, "this signification of the word 'heirs,' when there is no other guide to its meaning than that it points out the persons who are to receive personal property, is, we think, more likely than any other to reach the...