N.Y. Trust Co. v. Murray

• Decision Date: 29 July 1936
• Citation: 186 A. 531
• Parties: NEW YORK TRUST CO. v. MURRAY et al.
• Court: New Jersey Court of Chancery

186 A. 531

NEW YORK TRUST CO.

v. MURRAY et al.

Court of Chancery of New Jersey.

July 29, 1936.

Syllabus by the Court.

On a bill seeking construction of wills of wife and husband who create a trust estate for the benefit of their two daughters, in which no provision has been made for the disposition of excess or surplus income, held, that such excess or surplus income becomes a part of the corpus and should be distributed in accordance with the provisions of the wills.

Suit by the New York Trust Company, trustee under the last will and testament of John P. Murray, deceased, against Helen Murray and others.

Decree in accordance with opinion.

Benjamin Treacy, of Jersey City, for complainant.

Michael J. Murphy, of Paterson, for defendants, Helen and May Murray.

Autenrieth & Wortendyke, of Newark, for defendants Margaret C. and May L. Sheridan.

George E. Cutley, of Jersey City, for defendants Andrew, Alexander, and Murray J. Booth.

Mark A. Sullivan, of Jersey City, for defendant St. Peter's College.

Backes & Backes, of Trenton, for defendants Monastery of the Poor Clares and College of Mount St. Mary.

Joseph H. McGuinness, Jr., of Jersey City, for defendant Marist Brothers.

L. Edward Herrmann, of Jersey City, for defendant St. Ann's Home.

EGAN, Vice Chancellor.

On June 6, 1933, John P. Murray, late of the city of Jersey City, county of Hudson, state of New Jersey, died leaving a last will and testament, which was duly probated by the surrogate of Hudson county on June 19, 1933. Letters testamentary were issued to the complainant, Margaret C. Sheridan, and Mary E. Booth, since deceased. The bill of complaint shows that as of September 6, 1934, the corpus of the estate amounted to $700,000, and in addition thereto the sum of $41,514.36, which constituted surplus and unexpended income. At the time of the filing of the bill herein, the accumulated income from the principal of decedent's estate amounted to approximately $41,064.92.

Under paragraph 8 of the will, the decedent devised all his estate to the complainant in trust for the support and maintenance of his two daughters, May and Helen Murray, and the survivor of them. It is provided that in the event the income from the estate is more than sufficient, or necessary, for the support and maintenance of May and Helen, the trustee is directed to expend so much of the excess as will be necessary for certain payments directed to be made in paragraph 8 of the will. However, these payments are not a part of the issue herein. Helen Murray is 35 years of age, and May Murray is 38 years of age. Both are incompetent.

In paragraph 10 of the will, these clauses appear:

"Should any additional construction be ever made where either or both of my daughters may be, I hope that arrangements can be made so that special rooms will be set aside for my daughters, and for that purpose I authorize my Trustee to defray such part of the expense of building as it may deem proper and as may be agreed upon and should the income from my estate be insufficient to meet such expense then to use the principal, because as hereinbefore stated, what estate I am leaving is primarily for my daughters, and only for the unusual circumstances which exist, would be left absolutely by me to them." (Italics mine.)

"Upon the death of my daughters, I direct my Trustee to pay from any unexpended income or to pay, if necessary, from the principal for the expense of their last illness, also for their funeral expenses, and for the erection of a tombstone corresponding to that now placed over the grave of their mother."

The residuary estate is disposed of by paragraph 16, as follows: Oneseventh to the College of Mount Saint Mary, one-seventh equally among St. Ann's Home, St. Peter's College, the Marist Brothers, and the Monastery of Poor Clares; two-sevenths to Margaret C. Sheridan and three-sevenths to Mary E. Booth.

The lastmentioned paragraph also provides that in the event that Margaret C. Sheridan should not survive the testator's two children, then her share is to be divided, one-half thereof to go to the College of Mount Saint Mary, and the other half to go to those who would take it if the testator at the time of the death of the survivor of his two daughters had died intestate.

The persons in esse who would be the next of kin of the testator if the survivor of his two children were to die at this time, and who are the representatives of testator's next of kin, are the children of his deceased sister, Mary E. Booth, who died on March 6, 1935, to wit, Andrew Booth, Alexander Booth, and Murray J. Booth, who are all of age.

The bill states that the will makes no disposition of the surplus income, nor does it give any direction as to the investment thereof. It, inter alia, says: "Complainant is unable to determine what right or interest the said Helen and May Murray have in said surplus income and accumulations nor what right or interest the residuary legatees have therein; the claim on behalf of the said Helen Murray and May Murray being that it was the intention of the testator as expressed in his will to appropriate the said income of said residuary estate to their use and benefit, and if there should be a surplus of income unexpended, that such surplus belongs to them by virtue of the provisions of said will; the claim being made in the alternative on behalf of said Helen and May Murray that if said surplus income is not disposed of by said will then the said John P. Murray died intestate as to the same and such surplus income and accumulations belongs to them as the next of kin of said John P. Murray, and at any rate, is to be held by the trustee for any expenditures that the care, support, maintenance and comfort of the said Helen Murray and May Murray may require in the future, and also for the payment of their funeral expenses and the erection of a tombstone for them, and on the other hand, the claim on behalf of the residuary legatees being that said unexpended income belongs to them." Also, that "Owing to the fact that under the provisions of the said will complainant has a wide discretion as to the application of the moneys to the care and maintenance of May and Helen Murray, it is important that it know at this time what other persons besides Helen and May Murray have any future or contingent interest in these funds."

The will provides in paragraph 2 that certain personal property be sent to Mount Saint Mary's College, North Plainfield, N. J., for the use of the testator's daughter, Helen, who, at the time of testator's death, was living at the college, but at the time of his death left the college and is residing at the last residence of the testator, No. 61 Lembeck avenue, Jersey City, N. J, with Margaret C. Sheridan and May L. Sheridan, her aunts. It is alleged that Mount Saint Mary's College has refused to accept or receive any of that personal property which is mentioned and described in paragraph 2 of the will.

Jennie L. Murray, wife of the testator, John P. Murray, died November 20, 1923, leaving a last will and testament which was probated by the surrogate of Hudson county on December 20, 1923. She devised and bequeathed one-third of her estate to her husband absolutely, and two-thirds of her estate to her husband in trust to apply the income, and also the principal, if necessary, to the care and maintenance of her two children, May and Helen Murray. The will gave John P. Murray power to dispose by will such of the said trust estate as would remain upon the death of the survivor of the said two children, and it also gave him power to appoint one or more to succeed him as trustee of the said trust, and define their powers and duties. Paragraph 2 of her will treats these subjects as follows: "I give, devise and bequeath all the rest, residue and remainder of my property to my husband, John P. Murray, in trust, to apply the income and also the principal, if in his discretion advisable or necessary, to the care and maintenance of our two children, May and Helen, and the survivor of them in such proportion, in such manner and at such times as to him may seem right or proper. I give to my husband power to dispose by will of such of the Trust Estate herein created as may remain upon the death of the survivor of our two children. Should he, however, survive our two children, then I give, devise and bequeath to him such part, if any, of the trust estate herein created as may remain at the death of the survivor of our two children."

The third paragraph of Jennie L. Murray's will, in part, reads as follows: "I give to him power by last will and testament to appoint one or more to succeed him as trustee and/or guardian hereunder should the trust estate not have terminated before his death and I also give him power to define their powers and duties as fully as if he were the sole owner of the trust estate and to dispense with security in his discretion."

He, accordingly, in the fifteenth paragraph of his will, exercised the power given him by his wife to appoint a successor or trustee to succeed himself as trustee under her will, as follows:

"I direct that the Trustee substituted in my place to act under the Will of my Wife apply the income of the trust estate created under her will and also the principal if needed, in its uncontrolled discretion to the care, support, comfort and maintenance of our two daughters, May and Helen in such proportions as to it may seem proper, provided, however, that each of my said daughters shall be cared for and maintained at least as well as they are being cared for and maintained at the time of my death. All the provisions which I have above set forth with regard to the application of my individual property and the care of my two daughters and the survivor of them shall apply to the use of the income and principal of the trust created by their mother for their benefit.

"Upon the death of the survivor of my two daughters, May and Helen,...