Noble v. Union Tp.

• Decision Date: 21 October 1947
• Docket Number: No. 147/701.,147/701.
• Citation: 55 A.2d 222
• Parties: NOBLE v. UNION TP. et al.
• Court: New Jersey Court of Chancery

55 A.2d 222

NOBLE

v.UNION TP. et al.

No. 147/701.

Court of Chancery of New Jersey.

Oct. 21, 1947.

Suit by Newton S. Noble, as trustee of the trust created by the 37th paragraph of the last will of Edward M. Burnett, deceased, against Township of Union and others, for construction of will.

Decree advised in accordance with opinion.

Syllabus by the Court.

1. Testator bequeathed to his executors and the survivor of them $50,000 in trust to be divided in two equal parts: one part to be expended to erect a permanent memorial to his son in the City of Akron, Ohio; the other to be expended to erect a permanent memorial to himself to be placed in Union, Union County. He left the nature of each memorial ‘to the sound and absolute discretion of my Executors but it is my recommendation that the same should take the form of something of general public usefulness.’ Complainant, sole surviving executor, proposes in the exercise of the discretion committed to him that the fund for the erection of a memorial in Union, Union County, be divided into two parts, one such part to be paid to the Trustees of Rutgers College, and the other to the Trustees of Princeton University, each to be used to erect and establish the ‘Edward M. Burnett Memorial Fund’, the income of which is to be used for the ‘Edward M. Burnett Scholarships,’ to be awarded to worthy and deserving students residing in the Township of Union.

2. Where a testator gives to his executors a power coupled with a trust, equity will enforce a proper exercise of the power, but if that power be given upon a trust to be exercised as here, where the nature of each memorial is left to the sound and absolute discretion of testator's executors, this Court will not interfere with the executor's discretion in executing the trust so long as the executor exercises it in good faith and within the power.

Charles C. Trelease, of Newark, for complainant.

Lindabury, Steelman & Laffety, of Newark, for defendant, the trustees of Rutgers College in New Jersey.

Charles B. Alling, of New York City, for defendant, the trustees of Princeton University.

Kein & Scotch, of Union, for defendant, Union Tp.

Walter D. Van Riper, Attorney General of the State of New Jersey.

Hugh S. Jenkins, Attorney General of the State of Ohio.

STEIN, Vice-Chancellor.

This cause was instituted by the complainant, sole surviving trustee of the trust established under the will of Edward M. Burnett who died February 9, 1932, leaving a last will and testament dated January 15, 1929, in and by which he appointed the complainant and D. Frederick Burnett and the survivor of them, as his executors and trustees. The will was duly probated and the executors and trustees qualified thereunder. D. Frederick Burnett, one of the executors and trustees, died April 22, 1940 prior to the completion of the administration of the estate. The complainant as surviving executor completed the administration of the estate and filed his final account with the Surrogate of Union County, which account was allowed by decree entered December 21, 1945, and in which decree it was ordered that the balance of the funds in the hands of complainant as executor should be distributed to the general legatees as payment on account of the interest due to them, which payments exhausted the assets of the estate and left nothing for the residuary legatees, namely, Rutgers University and Princeton University.

Complainant now holds as surviving executor certain trust funds devised to him by the 37th paragraph of decedent's will. That paragraph provides: ‘37. I give and bequeath unto my Executors, hereinafter named, and the survivor of them, in trust nevertheless to and for the following uses and purposes, to-wit: the sum of Fifty Thousand Dollars ($50,000.). to be divided into two (2) equal parts; one part to be expended to erect a permanent memorial to my son, Aaron W. Burnett, and to be placed in the City of Akron, Ohio; the other part to be expended to erect a permanent memorial for Edward M. Burnett, and to be placed in Union, Union County, New Jersey. I leave the nature of each memorial to be sound and absolute discretion of my Executors but it is my recommendation that the same should take the form of something of general public usefulness.’

Complainant seeks construction and instruction and sets forth a plan for the use of the fund held by him under the provisions of this Article. Complainant proposes that the fund for the erection of a memorial in Union, Union County, be divided into two parts, one such part to be paid to the Trustees of Rutgers College and the other to the Trustees of Princeton University, each to be used to erect and establish the ‘Edward M. Burnett Memorial Fund’, the income of which is to be used for the ‘Edward M. Burnett Scholarships', to be awarded to worthy and deserving students residing in the Township of Union. The Trustees of Rutgers College and the Trustees of Princeton University in their...