Holmes v. Am. Soc. for Prevention of Cruelty to Animals

• Decision Date: 31 January 1938
• Citation: 123 N.J.Eq. 127,196 A. 718
• Parties: HOLMES v. AMERICAN SOC. FOR PREVENTION OF CRUELTY TO ANIMALS et al.
• Court: New Jersey Court of Chancery

196 A. 718

123 N.J.Eq. 127

HOLMES

v. AMERICAN SOC. FOR PREVENTION OF CRUELTY TO ANIMALS et al.

Court of Chancery of New Jersey.

Jan. 31, 1938.

Syllabus by the Court.

1. It is well established in law that a misnomer of a legatee or devisee will not render the legacy or devise void if the legatee or devisee intended by the testator can be clearly ascertained either from the will itself or from extrinsic evidence, and such rule applies to a devise or bequest to a corporation, association, or society, as well as to an individual.

2. Parol evidence to show the situation and surroundings of the testator, and the objects and persons with whom he was familiar, and upon whom his affections were resting, is always competent in these cases. It does not contravene the general rule of law against the use of parol evidence to supplement wills. It does not attempt to show what the testator meant to say, but simply to show what he meant by what he did say.

Suit by Leah B. Holmes, individually and as executrix of the estate of Charles A. Holmes, deceased, against the American Society for the Prevention of Cruelty to Animals and others to obtain a construction of the will of Charles A. Holmes, deceased.

Decree in accordance with opinion.

Abraham Lieberman, of Union City (Harold B. Lightdale, of Jersey City, of counsel), for complainant. Everett Colby, of New York City, for defendant American Soc. for Prevention of Cruelty to Animals. Abram A. Lebson, of Englewood, for defendant Bergen County Soc. for Prevention of Cruelty to Animals. Gross & Blumberg, of Newark, for defendant Thurston S. Holmes.

EGAN, Vice Chancellor.

The bill seeks a construction of the will of Charles A. Holmes, who died June 11, 1936, in the town of West Englewood, county of Bergen, and state of New Jersey. It was probated before the Surrogate of the County of Bergen on June 25, 1936, and letters testamentary were issued to the complainant, Leah B. Holmes, who was the wife of the decedent, and the executrix in his will. The other executor in the will failed to qualify. Instructions are also sought.

The decedent left surviving him, in addition to the complainant, his wife, the defendant, Thurston S. Holmes, a son, who is the sole surviving next of kin. The personal estate of the decedent is in excess of $100,000. The fourth and fifth clauses of the will have given concern to the complainant, and it is those clauses about which she seeks the advice of this court.

The fourth clause of the will says that the remainder of the estate be constituted the residuary estate. In effect, the residuary estate is constituted a life estate for the complainant. The fifth clause of the will disposes of the residuary estate, and is expressed in these words:

"Fifth: Upon the death or remarriage of my wife, Leah B. Holmes, I hereby direct that my residuary estate shall be divided into four equal parts and disposed of as follows:

"5A. I hereby give, devise and bequeath one part to my son, Thurston S. Holmes, for his own use, absolutely and forever.

"5B. I hereby give, devise and bequeath one part to the Bergen County Society for the Prevention of Cruelty to Animals whose office is now in Englewood, New Jersey, for their own use, absolutely and forever.

"5C. I hereby give, devise and bequeath two parts to other Northern New Jersey struggling and legally constituted societies for the prevention of cruelty to animals for their own use, absolutely and forever. The amounts to be distributed to each society and the societies to be benefited by this provision of my last Will and Testament shall be allotted and designated by the New York Society for the prevention of Cruelty to Animals."

Subdivision 5A of the fifth clause undoubtedly vests a one-fourth interest in the decedent's son, Thurston S. Holmes, subject to the life tenancy of his mother, Leah B. Holmes. Subdivision 5B of the same clause gives a one-fourth interest in the residuary estate to the Bergen County Society for the Prevention of Cruelty to Animals, subject to the life tenancy of the complainant, the widow of the decedent.

The complainant and the defendant Thurston S. Holmes, while they do not appear to question the bequest to the Bergen County Society for the Prevention of Cruelty to Animals, they, at the same time, do not concede that that society has an actual one-fourth interest in the residuary estate subject as aforesaid. They suggest the inference that "at some appropriate time" they may "attack this interest." The remaining one-half interest in the residuary estate is given to "other Northern New Jersey struggling and legally constituted societies for the prevention of cruelty to animals for their own use, absolutely and forever; the amounts to be distributed to each society and the societies to be benefited by this provision * * * shall be allotted and designated by the New York Society for the Prevention of Cruelty to Animals." The bone of contention, very largely, appears to be subdivision 5C of the fifth clause.

There is no such society as the "New York Society for the Prevention of Cruelty to Animals." The defendant the American Society for the Prevention of Cruelty to Animals, which is a corporation of the state of New York, claims that the decedent intended that it was the society which the decedent had in mind when he wrote subdivision 5C of the fifth clause of his will and used the designation "New York Society for the Prevention of Cruelty to Animals."

The Bergen County Society for the Prevention of Cruelty to Animals maintains that subdivision 5C of the fifth clause is legal and valid, and takes the position that it may be entitled to some of the funds bequeathed by subdivision 5C as aforesaid. The argument of this last-named society is without substance when we examine subdivision 5C of the fifth clause of the will, and find there the words "other * * * societies." The word "other" in my opinion clearly and expressly excludes the Bergen County Society for the Prevention of Cruelty to Animals from any additional consideration.

It is clearly evident that the "New York Society for the Prevention of Cruelty to Animals" selected by the testator to allot and designate the "other northern New Jersey struggling and legally constituted societies for the prevention of cruelty to animals" was not in existence prior to, at, or after the death of the testator, and no such organization bearing that title existed, or appears to have existed. Certainly, the language used in making the gift to "other northern New Jersey struggling and legally constituted societies for the prevention of cruelty to animals" is vague and indefinite. What did the testator mean by the use of the word "northern" in that phrase or title? The word "northern" is not definite. It has no legal geographical significance. It has no line of demarcation in the state of New Jersey. The will, or the paragraph in which the lastmentioned title appears, does not show what counties, cities, municipalities, or sections, are comprised in the word "northern." The testator...