Johnson v. Bowen

• Decision Date: 20 September 1915
• Docket Number: No. 35/579.,35/579.
• Citation: 95 A. 370
• Parties: JOHNSON v. BOWEN et al.
• Court: New Jersey Court of Chancery

95 A. 370

JOHNSON

v. BOWEN et al.

No. 35/579.

Court of Chancery of New Jersey.

Sept. 20, 1915.

Bill by Lucene II. Johnson against Abner T. Bowen, executor, and others, for the construction of the will of George F. Johnson, deceased. Heard on bill, pleadings, and proof. Will construed, and trustees to carry out a charitable trust appointed.

See, also, 80 N. J. Eq. 525, 85 Atl. 254.

G. Bartram Woodruff and Foster M. Voorhees, both of Elizabeth, for complainant. McDermott & Enright, of Jersey City, for heirs and next of kin. Condict, Condict & Boardman, of Jersey City, Henry B. Johnson, of New York City, and Edward J. West, of Camden, for defendants executors and City of Logansport.

LEWIS, V. C. George F. Johnson died in June, 1910. At that time he was living on his farm at Mountainside, Union county, N. J. On the 23d of December, 1909, he made and executed his will, which reads as follows:

"In the event of my demise before it is time for me to form my will in the regular way. I devise and decree that the residue of my estate—all monies and incomes—after the payment of my just and due debts and providing for such appropriations as herein mentioned shall go to the establishment of a hospital in the City of Logansport Indiana.

"In furtherance of these plans I appoint my friend Abner T. Bowen of Delphi Indiana—and New York, to be my executor—to be assisted by A Josephine Smith wife of Willis J. Smith of Philadelphia as executrix—Said A Josephine Smith being familiar with all my plans—

"I devise and desire this hospital to be a free gift to the City of Logansport, under such direction and arrangement as my executor, Abner T Bowen and my executrix A Josephine Smith may make with the Mayor and Alderman of the City of Logansbort.

"This hospital is designed to be a memorial in the City of Logansport to my father Israel Johnson and his beloved wife Mary—my Mother and to be known as the Israel and Mary Johnson hospital.

"Said hospital to be free to persons to any religious denominations what so ever and to all or any of the medical profession in good standing.

"I devise and desire that a sum shall be held by my executor and executrix sufficient to pay to Mrs. George W. Miles the sum of thirty three dollars per month.

"I devise that such sum shall be sent to Mrs. George W. Miles—the sister of my beloved wife (now deceased) on the first of each month at Weedsport, New York or at such place as she may designate said sum of thirty three dollars to be sent to her monthly so long as she shall live.

"To Mrs A Josephine the cousin and name sake of my" wife (now deceased) I devise and bequeath all jewelry together with the personal effects of my wife clothing Books, all personal belongings—etc.

"I also devise that all furniture—and bricabrac—now in my house shall belong for ever and be owned by said Mrs A Josephine Smith— Such a part of it as she may wish to retain— the balance to go to said hospital—or sold as my executor and executrix may in their judgment seem best.

"I devise and decree that the indebtedness of the Mrs Smith Co as charged upon my books remain in tact until such a time as arrangement for payment can be made—

"I devise that the stock and implements belonging to my farm should be sold at auction to the highest bidders, the monies thereby obtained to go to the estate for the benefit of said hospital—

"Such sale to be made at a time when in the judgment of the executor and executrix—is most fitting for the benefit of the estate—"

The testator left no descendants, widow, or parents. His heirs and next of kin were a sister, a brother, and a number of nephews and nieces. His estate consisted of his country estate or farm, on which he resided at the time of his death, which consisted of about 171 acres, from which he derived no income; an apartment house in New York, heavily mortgaged, which produced no income over operating expenses, interest, and taxes; also considerable cash in hank, also in the Hartog Candy Company, and other investments in personal securities. There were, in addition, the personal effects, furniture, and stock on the farm on which he died. Besides these, he had contracts with the Equitable Life Assurance Society, which produced the income on which he lived. He had been connected with the Equitable Life Assurance Society by two agency contracts running from 1891 to 1906, under which he was entitled to receive commissions upon policies solicited by him, for 20 years from the date of each policy. He had retired from business on December 31, 1006, and the income upon which he was living at the time of his death consisted, for the most part, of the commissions paid monthly under these contracts. His other interests in personal securities and deposits produced an income of considerably less than $1,000 per annum. The buildings on the farm have been burned since the testator's death, and insurance has been collected amounting to $8,022.48; the land itself being valued at $17,150. His real estate in New York has been foreclosed, and has netted the estate $1,922.89. The total value of the real estate of which he died seised amounted to $27,095.37.

The proceeds of the personal property on hand after the payment of the debts of the decedent, the annuity mentioned in the will, which has been paid up to April 1, 1915, the delivery to the legatees named in the will of the jewelry, etc., specifically bequeathed, the payment of the costs and allowances of the contest of the will, and the transfer of inheritance tax from New York to New Jersey, amount to about $18,000, to which must be added payments from the Equitable Life Assurance Society, which will amount to between $7,500 and $10,000, making a total of about $25,500. The estate has been diminished since the decedent's death by circumstances which he could not have foreseen, viz., the costs of the contest of his will by the heirs and next of kin, which said costs amounted to the sum of $10,900.

It is contended by the negative that the words in the first paragraph of the will "all monies and incomes" are words by way of explanation to show just what the testator meant to be included by the words "the residue of my estate," and that therefore the testator died intestate as to his real estate—citing the case of Leigh v. Savidge, 14 N. J. Eq. 124.

The counsel for the positive have cited the case of Torrey v. Torrey, 70 N. J. Law, 673, 59 Atl. 451, wherein Judge Dixon wrote the opinion for the Court of Errors and Appeals, in which the court said:

"But it is argued that these considerations are not sufficient to overcome a certain legal presumption against disinheriting the heir. That presumption originated in an artificial system which does not exist among us—a system designed to avoid the division of landed estates. So far as it accords with the natural impulse to provide for one's family and kindred it still deserves weight."

Again in the same case the court says: "In attempting to interpret any will the first suggestion naturally arising is that the testator intended to dispose thereby of all his property."

A careful reading of this will has satisfied me that the testator intended to leave the residue of his estate, including both real property and personal, for the purpose of establishing a hospital in the city of Logansport, Ind., to be a memorial to his father and mother. The will was not drawn up by a lawyer, and the testator was a sick man at the time he...