King v. Rockwell

• Decision Date: 29 July 1921
• Docket Number: No. 44/705.,44/705.
• Citation: 115 A. 40
• Parties: KING v. ROCKWELL et al.
• Court: New Jersey Court of Chancery

115 A. 40

KING

v. ROCKWELL et al.

No. 44/705.

Court of Chancery of New Jersey.

July 29, 1921.

Bill by Frank W. King against William Locke Rockwell and Joseph M. Avery, executors, and others. Dismissed.

Edward F. Merrey, of Paterson, for complainant.

Edwin Q. Adams, of Newark, for defendants.

LEWIS, V. C. This case was originally submitted to the late Vice Chancellor Stevens, who died before a decision was rendered. Thereafter an order of rereference was made to me, and counsel have agreed to submit the case on the pleadings and on briefs.

The bill is filed for the purpose of having "declared Invalid and void" the seventh paragraph of the last will and testament of Laurastine Cotheal Smith, deceased, which reads as follows:

"Seventh. All the rest and residue of my estate, if any there be, after payment of the legacies aforesaid, including any of the said legacies which may have lapsed, I give, devise and bequeath to my executors herein named, or the survivor of them, in trust, nevertheless, to reduce the same to personalty as soon as possible, and to pay the same over to such charitable organizations, associations or institutions as my said executors may deem worthy, and in such proportions as they may determine; giving my said executors, or the survivor of them, the fullest discretion in the determination of the distribution of the said residue among worthy charities; such distribution to be made in not less than three years after death."

The complainant's contention is that the gift is not necessarily to charity, inasmuch as, although the executors must designate as beneficiaries charitable organizations, associations, or institutions, pursuant to the directions of the will, still those organizations might, perchance, expend their moneys for purposes which were not charitable. No other argument is presented against the validity of the provision quoted. Defendants, on the other hand, rest upon the language of the will, and contend that the gift is clearly limited to charitable uses.

Defendants also question the status of complainant to attack the will, in view of his having accepted a legacy under it, and given a general release of all claims which he might have against the estate. The will specifically provides that, if any beneficiary under it should, "by any suit or proceeding whatsoever, whether at law or in equity, attempt to nullify, set aside or invalidate, either in whole or in part, this my last will and testament," the bequest to such person should be revoked. Undoubtedly, had the complainant seen fit to attack the will, or any part of it, prior to the acceptance of his bequest under the will, he would have forfeited his legacy, according to the terms of the will; but having safely received his legacy, and then having executed a release of all claims against...