Nat'l State Bank Of Newark v. Stewart

• Decision Date: 06 October 1944
• Docket Number: No. 221.,221.
• Citation: 39 A.2d 435
• Parties: NATIONAL STATE BANK OF NEWARK et al. v. STEWART et al.
• Court: New Jersey Supreme Court

39 A.2d 435

NATIONAL STATE BANK OF NEWARK et al.

v.STEWART et al.

No. 221.

Court of Errors and Appeals of New Jersey.

Oct. 6, 1944.

Appeal from Court of Chancery.

Suit by National State Bank of Newark, N. J., and another, executors of the last will of Thomas J. Stewart, deceased, against Cornelia Henrietta Stewart, Ernest B. Slade and others, to construe a will. From a decree advised by Vice Chancellor, the defendant Ernest B. Slade appeals.

Affirmed.

Stickel & Stickel, of Newark (Fred G. Stickel, Jr., and Harold M. Kain, both of Newark, of counsel), for appellant.

T. Bryant Smith and G. W. C. McCarter, both of Newark, for complainants-respondents.

Carpenter, Gilmour & Dwyer, of Jersey City (Howard C. Gilmour, of Jersey City, of counsel), for defendant-respondents.

HEHER, Justice.

The question for decision is whether the decree correctly construes the fifteenth paragraph of the will of Thomas J. Stewart, deceased. A trust of the residuary estate was thereby created; and the trustees were directed to distribute the income thereof in part as follows:

‘Thirty per cent. (30%) of said income to my children me surviving, equally, share and share alike; and in the event any of my children shall predecease me leaving a lawful spouse, him or her surviving, the share of income of such child shall be paid over to such surviving spouse.’

The testator died on October 6, 1940, survived by his widow, four sons and a daughter, Hazel Stewart Stirling. The testament was made on June 26, 1940. One of the testator's children, Cornelia S. Slade, was then deceased. She died on April 10, 1936, survived by her husband, the appellant, and two children. The learned Vice Chancellor ruled that the testator intended to give to the surviving spouse of a deceased child, by way of substitution, the share of the income bequeathed to such child, if he or she survived the testator, and that Cornelia, ‘having predeceased the testator, * * * was not a child to whom the testator directed income should be paid.’ But the condition which he considered as controlling was the death of Cornelia prior to the making of the testament. At all events, the sole question now raised is whether the testator designed an ‘independent gift’ to the spouse of a child dead when the will was made. It is said that ‘there is no evidence in the will that the testator intended to exclude the spouse of his deceased daughter from a share in the income,’ and that the decree in this respect disregards the canon of construction applied in the case of Outcalt v. Outcalt, 42 N.J.Eq. 500, 8 A. 532. The doctrine is invoked that the testator is presumed to have phrased the bequest in the light of the rule of construction adopted in the cited case, and an intention at variance with that interpretation is not to be accepted unless explicitly manifested.

The judicial interpretative function is to find the meaning of the testator as expressed in the language used, considered in the light of the attendant circumstances, and enforce it unless forbidden by positive rules of law or public policy. If the testamentary purpose is exhibited by terms that are clear and unequivocable, there is no room for construction in its general acceptation. In re Fisler, 133 N.J.Eq. 421, 30 A.2d 894. The spirit prevails over the letter of the testament. All principles and rules in aid of interpretation yield to the intention revealed by the context. And words are to be given their primary and natural significance unless the context renders it clear that they were employed in a different sense. The prima facie meaning of the terms cannot be rejected in favor of a larger construction without a clear indication of such a purpose. Speculation as to the testamentary intention is not permissible. The judicial authority may not rewrite the will, in whole or in part. And blind adherence to precedent as respects the meaning of a particular phrase is fraught with peril to the testamentary design, for, as said, intention is to be gathered from the instrument as a whole, and it rarely happens that the wills are substantially alike.

The bequest here is not an original substantive gift to the spouse of the deceased child, Cornelia. It is purely substitutionary in character; and it does not embrace Cornelia's husband. When the will was made, she was long since dead to the testator's knowledge. The bequest is couched in terms of futurity, and it cannot be read as applying to the husband of a child then deceased without disregarding the normal meaning of the language, and thus doing violence to the expressed testamentary intent. The word ‘shall’ naturally imports futurity. As here used, it excludes the spouse of a child then dead. The phrase is ‘shall predecease me,’ rather than ‘shall have predeceased me.’

Conceding that such is the common sense and significance of the language, appellant urges that words of futurity may also be read as applying...