McGill v. Trust Co. of New Jersey

• Citation: 125 A. 108
• Decision Date: 21 May 1924
• Docket Number: Nos. 36, 97, 116, 117.,s. 36, 97, 116, 117.
• Parties: McGILL et al. v. TRUST CO. OF NEW JERSEY et al.
• Court: United States State Supreme Court (New Jersey)

125 A. 108

McGILL et al.

v. TRUST CO. OF NEW JERSEY et al.

Nos. 36, 97, 116, 117.

Court of Errors and Appeals of New Jersey.

May 21, 1924.

(Syllabus by the Court.)

Appeal from Court of Chancery.

Suit by John Dale McGill and others against the Trust Company of New Jersey and others. From the decree rendered (121 Atl. 760), all parties appeal. Modified and affirmed.

Hopkins & Herr, of Hoboken, for complainants.

Fisk & Fisk, of Jersey City, and Besson, Alexander & Stevens, of Hoboken, for defendant Trust Co. of New Jersey.

Merritt Lane, of Newark, for defendant MeGill.

Osborne, Cornish & Scheck, of Newark (Thomas Fleming Walsh, of New York City, on the brief), for defendant Mayer.

BLACK, J. The bill of complaint in this case was filed by the grandchildren of Dr. John T. McGill, deceased. One object and purpose of the bill was to obtain a construction of his will and a codicil thereto. The will is dated June 17, 1907. The codicil is dated October 10, 1911. Dr. McGill, the testator, died November 28, 1912. A further purpose of the bill, also, was to require the performance of certain duties by the defendant trust company, which was appointed executor and trustee under the will. These latter questions, however, were not considered or passed upon by the Court of Chancery and are not involved in the present appeal. The case was heard by Vice Chancellor Buchanan. He advised a decree, on which 12 propositions were adjudged, from which all the parties to the suit filed appeals.

Our examination and consideration of the record, a reading of the opinion of the learned Vice Chancellor, the elaborate briefs filed by the counsel for the respective parties lead us to the conclusion that the decree should be affirmed with a modification in two respects. We are satisfied with the conclusions reached in the Court of Chancery, which are contained in the final decree and numbered 1, 2, 3, 5, 6, 6a, 7. 8, 9, 10, 11, and 12. In Nos. 9 and 10, it is, held that, by virtue of the provisions of the codicil, the testator's children, Alexander and Eleanor, were invested in severalty, with the equitable remainder of the whole estate, subject to the preceding life estates. But this is evidently a mere verbal mistake by the draftsman of the decree. We agree that they are so seized, but not by virtue of the provisions of the will. They are so seized because of the fact that the testator made no valid disposition of that estate, his disposition being in violation of the rule of perpetuities. Our consideration of No. 4, in which it is adjudged the children of Alexander, the complainants, have a contingent estate or interest in the Eleanor share, because of the fact that they were members of the class designated as testator's "blood relations," with a preference to "his immediate descendants," under the contingent power of testamentary appointment given to his daughter Eleanor, leads us to the conclusion that this is untenable. It is too remote. They have no such contingent interest. An apt illustration was suggested, which clearly indicates this. If the power in the will had authorized Eleanor to dispose of this share of the estate by her will to such religious, charitable, or educational institutions of the Presbyterian Church, as existed in the...