N.J. Title Guarantee & Trust Co. v. Perry

• Decision Date: 23 January 1934
• Citation: 170 A. 34
• Parties: NEW JERSEY TITLE GUARANTEE & TRUST CO. v. PERRY et al.
• Court: New Jersey Court of Chancery

170 A. 34

NEW JERSEY TITLE GUARANTEE & TRUST CO.

v. PERRY et al.

Court of Chancery of New Jersey.

Jan. 23, 1934.

Syllabus by the Court.

Testator gave a sum in trust for the benefit of his married niece for life, provided, if she should become a widow, the corpus should be paid to her. Held, that her divorce did not make her a widow within the meaning of the will.

A widow is a wife who outlives her husband; one whose husband is dead.

Suit by the New Jersey Title Guarantee & Trust Company against Louise E. Perry and others.

Decree in accordance with opinion.

Carey & Lane, of Jersey City, for complainant.

Ziegener & Brenner, of Jersey City, for defendants.

FIELDER, Vice Chancellor.

William G. Meyer died October 30, 1930. By the seventh clause of his will, dated November 25, 1929, he gave $5,000 to complainant in trust for the benefit of his niece Mildred K. O'Leary, to pay her the income for life, provided "that if she shall become a widow at any time or shall be a widow at the time of my death, said fund with all accruals shall be paid to her immediately."

Mrs. O'Leary married June 20, 1925, and divorced her husband April 30, 1931. He is still alive. She has requested complainant to pay her the principal of the trust, and complainant seeks to be advised whether she is entitled to have it. The sole question for decision is whether or not Mrs. O'Leary, as a divorcee, is a widow within the meaning of the quoted clause.

A widow is a wife who outlives her husband; one whose husband is dead. Divorce puts an end to the marriage relation, but the divorced wife is not a widow in contemplation of law. Swallow v. Swallow, 27 N. J. Eq. 278; Bell v. Smalley, 45 N. J. Eq. 478, 18 A. 70; Crocheron v. Fleming, 74 N. J. Eq. 507, 70 A. 691; Block v. P. & G. Realty Co., 96 N. J. Eq. 159, 124 A. 372; 40 Cyc. 394.

But it is contended that the testator's sole intention was to create a trust to protect Mrs. O'Leary against her husband, and that, when she was no longer his wife and the reason for the trust had ceased, she should receive the principal. The argument is that, on the facts disclosed by the testimony, the word "widow" should be construed to mean the same as "without husband."

The evidence shows that Mrs. O'Leary's relations with the testator were as father and daughter; that he never liked her husband and disapproved of her marriage; that her marital troubles commenced a few months after marriage and were known to the testator; that he frequently said she should be free from her husband and should divorce him; that he consulted his own attorney (who thereafter drew the will) as to how she could secure a divorce; that early in 1929 he went with her to another attorney to discuss divorce proceedings, and that with this knowledge on his part and on the part of his attorney the will was prepared under the testator's instructions and was executed.

In a ease where a testator devised property in trust for his daughter for life, with a proviso that, if she became a widow, the trust should end and she should have the trust property, it was held, upon facts somewhat similar to those above recited, that the word "widow" should be construed to mean "husbandless," In view of the testator's probable intent to keep the property from the husband's control, and that the daughter, having procured a divorce, was entitled to have the trust ended (Rittenhouse v. Hicks, 10 Ohio Dec. Reprint, 759; 23 Weekly Law Bulletin, 269), and such construction finds support...