Lawrence v. Westfield Trust Co.

• Decision Date: 08 November 1948
• Docket Number: No. 158/123.,158/123.
• Citation: 61 A.2d 899
• Parties: LAWRENCE et al. v. WESTFIELD TRUST CO. et al.
• Court: New Jersey Superior Court

61 A.2d 899

LAWRENCE et al.

v.WESTFIELD TRUST CO. et al.

No. 158/123.

Superior Court of New Jersey, Chancery Division.

Nov. 8, 1948.

Suit by Alexander K. Lawrence and others, against the Westfield Trust Company and Louis Lawrence, trustees of the estate of Marie DePui Norton, deceased, and others for construction of the last will of deceased.

Judgment in accordance with opinion.

1. The word ‘issue’ as used in a will may be given its ordinary meaning or may be given a more restricted meaning. In its ordinary sense, the word ‘issue’ includes grandchildren and remoter descendants as well as children, but where it is apparent from the will that the testator intended that the word be given a restricted meaning that intention will be attributed to the word.

2. In the instant case, testatrix bequeathed the residue of her estate upon the death of her husband and son ‘unto the lawful issue of my said son, to be divided among them share and share alike.’ Held, that the testatrix intended the word ‘issue’ to be given its general meaning, and that it means descendants of every degree of her son, and that the lawful issue of the testatrix' son includes not only his children but also his grandchildren.

3. The bequest to the ‘lawful issue’ of testatrix' son, constitutes a class gift. A class gift is defined as a gift of an aggregate sum to a body of persons uncertain in number at the time of the gift, to be ascertained at a future time, who are all to take in equal or some other definite proportions, the share of each being dependent for its amount upon the actual number.

4. In the instant case, the ‘lawful issue’ of testatrix' son cannot be completely ascertained until the time of his death, and although the gift vested at the time of testatrix' death the class must remain open until the death of the son to admit new members, and at that time the class will include all of the descendants of the son who were alive at the death of the testatrix and who subsequently became members of the class before the death of the life tenant.

5. The doctrine of acceleration of remainders has been adopted in New Jersey, and the rule of construction has been established by a long line of decisions. The rule will be applied and a remainder accelerated in the absence of some controlling equity or an express or clearly implied provision in the will to the contrary. There is in the instant case such a contrary intention. The application of the doctrine of acceleration and distribution of the estate at this time would negate the testamentary scheme as expressed in testatrix' will, and would disinherit grandchildren of the life tenant born between now and the time of his death.

McKirgan & Gilson and Elmer McKirgan, both of Summit, for plaintiffs.

Beard and McGall and William M. Beard, both of Westfield, for defendant, Westfield Trust Co., substituted trustee.

J. Albert Homan, of Trenton, for guardian ad litem.

STEIN, Judge.

This complaint is brought for construction of the last will and testament of Marie DePui Norton and for judgment as to whether the release executed by Louis Lawrence, life tenant, of his life estate, had the effect of accelerating the trust and immediate distribution of the corpus of the trust to the remaindermen.

Marie DePui Norton died testate, a resident of the Township of Cranford, Union County, New Jersey, in 1922. Her last will and testament was admitted to probate by the Union County Surrogate on May 20, 1922, and letters testamentary were issued to Solon Lathrop Norton, the decedent's husband, who was named as the executor and trustee therein. The said Solon Lathrop Norton died on October 28, 1922, whereupon the Cranford Trust Company was appointed administrator with the will annexed. On February 9, 1923, the Cranford Trust Company was relieved of its duties as administrator c.t.a., and letters of substituted administration were issued to Louis Lawrence, a son of the testatrix, and to the Westfield Trust Company. The substituted administrators qualified as trustees and are administering the estate in that capacity.

Under the fourth paragraph of her will, the testatrix bequeathed all the rest, residue, and remainder of her estate to her executor and trustee therein named, to pay one-half of the net income therefrom to her husband, Solon Lathrop Norton, for life, and the remaining half to her son, Louis Lawrence, for life and further directed that should her husband, Solon Lathrop Norton, die before her said son, then all of the net income from the estate was to be paid to her son. In the event of the death of her said son leaving lawful issue him surviving, then the share of the income which he would have received if living was by her will to be paid and divided among said issue, share and share alike. Upon the death of both her husband and son, testatrix devised all of her property to the lawful issue of her son, to be divided among them share and share alike.

Solon Lathrop Norton died October 28, 1922. The son, Louis Lawrence, at the time of the filing of the bill of complaint was 76 years of age. He has five children, Stuart N. Lawrence, Alexander K. Lawrence, Robert L. Lawrence, Marie L. Loblein, and Solon L. N. Lawrence. The said Louis Lawrence also has five grandchildren, who are infants, and for whom I. Grant Scott, Clerk, was appointed as guardian ad litem.

On November 18, 1946, Louis Lawrence, the surviving life tenant, executed an instrument purporting to be a release of any right, title, and interest that he might have in the life estate created under the testatrix' last will and testament.

The word ‘issue’ as used in a will may be given its ordinary meaning or may be given a more restricted meaning. In its ordinary sense, the word ‘issue’ includes grandchildren and remoter descendants as well as children, but where it is apparent from the will that the testator intended that the word be given a restricted meaning that intention will be attributed to the word.

In Pierson v. Jones, 108 N.J.Eq. 454, 155 A. 541, 542, the rule is expressed as follows:

‘The correct rule is well stated by Chancellor Magie in Inglis v. McCook, 68 N.J.Eq. 27, at page 39, 59 A. 630, 635, as follows:

“But when used in a will a more restricted meaning may be attributed if, from the terms of the testamentary disposition, it clearly appears that the testator used the word in a particular meaning less general than its ordinary meaning. * * *

“To properly pursue this inquiry, it is obvious that we must start with the assumption that the testator used the word in its ordinary signification. We must then examine the whole will, and we will not be able to attribute to the word a more restricted meaning unless we find in the will itself clear indication that the testator used it in this case in such restricted meaning.”

Where the testamentary disposition provides for issue to take the share their parent would have taken if living, the word ‘issue’ will be given its restricted meaning because such a disposition suggests that the testator in using the words ‘their parent’ referred to children only as issue. Central Hanover Bank & Trust Co. v. Helme, 121 N.J.Eq. 406, 190 A. 53.

In Re Fisler's Estate, Err. & App., 133 N.J.Eq. 421, at page 423, 30 A.2d 894, at page 895, the Court stated: ‘If not restrained by the context, the word ‘issue’ is synonymous with descendants. It is nomen generalissimum; and, in its primary, technical sense, it signifies grandchildren and all remoter descendants, and the distribution is per capita and not per stirpes. Weehawken Ferry Co. v. Sisson, 17 N.J.Eq. 475; Dennis v. Dennis, supra (86 N.J.Eq. 423, 99 A. 889); Coyle v. Coyle, 73 N.J.Eq. 528, 68 A. 224; Inglis v. McCook, 68 N.J.Eq. 27, 59 A. 630. It is a rule of construction designed to advance and not defeat the testamentary object. If there be nothing more in a will touching the construction of the term ‘issue’ than a ‘direction that the issue are to take the shares of their parents, that is enough to confine the general meaning of the word ‘issue’ to the particular meaning of children of that parent.' Pruen v. Osborn, 11 Sim. 132. To the same effect is Lehigh v. Norbury, 13 Ves. 340. See, also, Sibley v. Perry, 7 Ves. 522.'

In Fidelity Union Trust Co. v. Graves, 139 N.J.Eq. 571, at page 582...