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

• Decision Date: 03 February 1938
• Parties: NEW JERSEY TITLE GUARANTEE & TRUST CO. v. DAILEY et al.
• Court: New Jersey Court of Chancery

196 A. 703

123 N.J.Eq. 205

NEW JERSEY TITLE GUARANTEE & TRUST CO.

v. DAILEY et al.

Court of Chancery of New Jersey.

Feb. 3, 1938.

Syllabus by the Court.

1. The court's main concern, in the construction of a will, is not so much what the testator meant to say, as it is to determine what he meant by what he did say.

2. Executors and trustees in a consideration of the testator's wife's application for moneys, made in accordance with the provisions of the will, for "so much of the principal * * * as she may desire," are not licensed to say what sum she shall receive.

Suit for the construction of a will by the New Jersey Title Guarantee & Trust Company, as an executor of the will of Harry Dailey, deceased, against Charlotte R. Dailey, individually and as an executrix of and trustee under the will of Harry Dailey, deceased, and others.

Decree in accordance with opinion.

Collins & Corbin, of Jersey City, for complainant. Thomas B. Davidson, of Jersey City, for defendant Charlotte R. Dailey. Lehlbach, Johnson & Ormond, of Newark, for defendants Jannie R. and William B. Nevius.

EGAN, Vice Chancellor.

The questions coming up for determination arise from the submission of the following stipulation of facts:

"1. Harry Dailey died on or about February 13, 1937, leaving a last will and testament which was on March 5, 1937, duly admitted to probate by the Surrogate of the County of Hudson and letters testamentary thereon were issued to The New Jersey Title Guarantee and Trust Company, and defendant Charlotte R. Dailey, the executors therein named, and also the trustees thereunder, which have taken upon themselves the burden of administering the said estate, and said letters are unrevoked and in full force and effect.

"2. The following is a true copy of the last will and testament of said Harry Dailey, deceased:

"'In the name of God, amen.

"'I, Harry Dailey, of Jersey City, in the County of Hudson and State of New Jersey, do hereby make, publish and declare the following as and for my last will and testament, hereby revoking and annuling all former wills by me made.

"'First: I give to my nephew William B. Nevius twenty shares of stock of Joseph Dixon Crucible Company.

"'Second: I give to my nephew John Day Hegeman twenty shares of stock of Joseph Dixon Crucible Company.

"'Third: I give to my nephew William Rogers Hegeman twenty shares of stock of Joseph Dixon Crucible Company.

"'Fourth: I give to my aunt Mary A. Bay, ten shares of stock of Joseph Dixon Crucible Company.

"'Fifth: I give to William D. Small, now my chauffeur, five shares of stock of Joseph Dixon Crucible Company.

"'Sixth: I give and bequeath to Emory Methodist Episcopal Church, Jersey City, aforesaid, two thousand dollars to be added to its Perpetual Endowment Fund, the income of which is to be used as directed by the Board of Trustees of said Church. In case said Church corporation shall be dissolved or cease to function, I direct that said two thousand dollars shall be paid to the Retired Ministers Endowment Fund of the Newark Conference of the Methodist Episcopal Church.

"'Seventh: I give, devise and bequeath all the rest, residue and remainder of my estate, both real and personal, and wheresoever the same may be situate, unto my wife Charlotte R. Dailey and The New Jersey Title Guarantee & Trust Company, in trust, nevertheless, to hold, invest and reinvest the same, and to pay over the income arising therefrom, and so much of the principal thereof as she may desire, unto my wife during the term of her natural life.

"'Eighth: On the decease of my wife, I give, devise and bequeath any and all residue which shall remain in the hands of my surviving trustee unto my sister, Jannie R. Nevius. Should my said sister not survive my wife, then in that event, I give, devise and bequeath said residue if any, unto my said nephew William B. Nevius, as and for his own property and estate.

"'Ninth: If at the time of my decease I have not made provision for the permanent maintenance of the lots in the cemeteries where my father, my mother and my grandmother Lydia A. Hoff are buried, I direct my executors to make such provision therefor from my estate as to them may seem proper.

"'Tenth: I hereby vest my executors and trustees with full power and authority to make sale of, or mortgage, any and all real property of which I may die seized, for such amount and on such terms as to them may seem for the best interest of my estate.

"'Eleventh: I direct my executors to pay all transfer inheritance taxes assessed against the above stated legacies put of my residuary estate.

"'Twelfth: I hereby constitute and appoint my wife Charlotte R. Dailey and The New Jersey Title Guarantee & Trust Company as executors of this my will, and as trustees hereunder.

"'In witness whereof I have hereunto set my hand and seal this sixth day of January, in the year one thousand nine hundred and thirty-three.

"'Harry Dailey [Seal]

"'Signed, sealed published and declared by the said testator as and for his last will and testament in our presence, and we at his request and in his presence, and in the presence of each other, have hereunto set our hands as witnesses thereto. "'Elsie B. Maccracken, 15 Exchange Place,

Jersey City, N. J.

"'Charles L. Carrick, 103 Gifford Ave.,

Jersey City, N. J.'

"3. Charlotte R. Dailey, Jannie R. Nevius and William B. Nevius are all now living and of full age, and said Charlotte R. Dailey is now seventy-three years of age. The said Jannie R. Nevius is a sister of the testator, and William B. Nevius is the son of the said Jannie R. Nevius.

"4. The heirs-at-law and next of kin of Harry Dailey, at the time of his death, were and still are the following persons:

"Charlotte R. Dailey, his widow

"Jannie R. Nevius, his sister.

"5. On or about July 14, 1937, said Charlotte R. Dailey notified, in writing, The New Jersey Title Guarantee and Trust Company of her desire for a payment from the principal of the estate of Harry Dailey, as follows:

"'2600 Hudson Boulevard,

"'Jersey City, N. J.

"'July 14, 1937.

"'To Charlotte R. Dailey and The New Jersey Title Guarantee & Trust Company, executors of the last will and testament of Harry Dailey, deceased:

"'In accordance with the provisions of the Seventh clause of the will of my late husband, Harry Dailey, I desire to have and will you kindly therefore pay to me, from the principal of his estate, the sum of ten thousand dollars.

"'Very truly yours,

"'Charlotte R. Dailey.'

"6. The estate of said Harry Dailey consists of real property of an approximate valuation of $5,000. and after deducting the expenses of administration, debts and other legacies, of personal property of an approximate value of $120,000. passing under the residuary clause of his will. The income therefrom amounts to about $4,000. per annum."

The defendants Jannie R. and William B. Nevius, say: That a consideration of the entire will, and the circumstances, and age, of the widow suggest the inference that the testator had in mind, when he executed his will, a reasonable competence for his wife during the period of her life, and that this purpose will be defeated if the trustees are given...