Pa. Co. For Banking & Trusts v. Clarkson
| Decision Date | 30 March 1949 |
| Docket Number | No. 50/679.,50/679. |
| Citation | 65 A.2d 98 |
| Parties | PENNSYLVANIA CO. FOR BANKING & TRUSTS v. CLARKSON et al. |
| Court | New Jersey Superior Court |
OPINION TEXT STARTS HERE
Syllabus by the Court.
1. A bequest of income without limit as to time, or gift over which can operate, is a bequest of principal, if there be no expression of a contrary intent. This rule
applies whether the gift be direct or through the intervention of a trustee.
2. The primary meaning of the word ‘unmarried’ is ‘never having been married’.
3. In the circumstances of the present case, the decree making partial distribution of the income from the trust is- so long as it stands-conclusive with respect to the rights to such income only, and cannot be made the basis of an estoppel when the corpus of the trust is to be distributed although it be part of the same estate, and although precisely the same legal questions are involved.
Proceeding by the Pennsylvania Company for Banking &Trusts, a Pennsylvania corporation, sole surviving trustee under the last will of Frances C. Henderson, deceased, against Elizabeth Adams Clarkson and others, for instructions with respect to final distribution of corpus and income of testamentary trust originated by testatrix.
Decree in accordance with opinion.
Waddington & Tilton and Howard S. Tilton, all of Camden, for plaintiff.
Robert J. Tait Paul, of Camden (Lawrence N. Park, of Camden, of counsel), for defendants Greissler.
Alexander T. Schenck, of Newark, administer ad prosequendum, pro se.
William Dickson Cunningham, of Rahway, for other defendants.
In pursuant of leave granted at the foot of a decree entered in 1922 in the Court of Chancery, the plaintiff in its fiduciary capacity now seeks judicial guidance and instruction with respect to the final distribution of the corpus and income of a testamentary trust originated by the testatrix Frances C. Henderson by her will executed on May 29, 1896.
The testatrix died on January 25, 1897, and it is circumspect to catch a glimpse of her family affiliations at the time of the execution of the will and at her death.
Her immediate kindred were then two daughters. Fanny Von Preuschen, aged 53, was married to Clemens Von Preuschen. Three sons were born of this marriage whose ages ranged from 28 years to 32 years. No other children were ever born of the marriage. The other daughter, Julia B. Adams, was the widow of one Edward White Adams, with two living children, Julia H. Adams, 25 years of age, and J. Pinckney H. Adams, 18 years of age, both of whom were then unmarried.
It was amid such surroundings that the testatrix made the bequests expressed in paragraphs 3 and 5 () of her will. I quote the relevant portions of those paragraphs:
‘3. I bequeath to my brother James S. Cox and to the Pennsylvania Company for Insurances on Lives and Granting Annuities in trust for my daughter Fanny one half of all the property, real, personal and mixed, not already mentioned in this will which I may own at the time of my death.
‘The interests and profits accruing from the same are to be paid to her regularly as long as she lives, and after her death, if she dies before her children or either of them has attained the age of thirty years (30 years), said interests and profits are to be used for the children.
‘As soon as each one reaches the age of 30 his shares and of any accumulated interests and profits is to be paid over to his order.
‘I leave to the direction of my said Trustees, to make before that time out of said invested or accruing interests any payments which they may consider necessary for either of said children for its establishment in life.
‘Should either of the sons of my daughter Fanny die before the age of thirty (unmarried) his share is to be added to the portions of his brothers.
‘5. I will and bequeath to my brother James S. Cox and the Pennsylvania Company for Insurances on Lives and Granting Annuities, in trust for my daughter Julia, the other half of all my property, real, personal or mixed not heretofore mentioned in this will which I may own at the time At the time of my death. The interests and profits accruing from the same are to be paid to her regularly as long as she lives, and if she dies before her children or either of them before either of them has attained the age of 30, the same are to be invested for the benefit of said children until each one has attained the age of thirty.
‘As respects the share falling to the daughter, it is not, in case she marries, to be subject to the control or interference of any husband or husbands she may take, and is to be forever free from any debts, charges or encumbrances of any such husband or any liability to his creditors and as respects the share of the son it is to be free, clear and discharged from the claim, demand or interference of any creditor which the said son may have at At time during his life.
‘Should neither of the children of my daughter Julia leave children, then after her death and theirs, all the property herein left in trust for her or them shall be placed in trust for my daughter Fanny or her children, and only the income paid over.
‘I further empower and authorize my said trustee or the survivor thereof or any successor in the said trust, at any time my said trustee or trustees may deem it advisable to sell my real estate, or any portion thereof, in such manner, at public or private sale and either for cash or credit as may be deemed advisable, and to use the proceeds thereof by investing the same upon the trusts hereby declared and set out, and upon making such sale or sale I hereby authorize my said trustees or trustee to make, execute and deliver such deeds and other assurances in the law to the purchaser or purchasers thereof as may be necessary without any liability on the part of the purchaser to see to the application of the purchase money.
‘And if a vacancy shall occur in the said trust by the death of my brother James S. Cox, then I appoint as trustee in his place Andrew A. Blair, the husband of my niece formerly Anna S. Biddle, of Philadelphia, now residing in Philadelphia.
‘I leave my daughter Julia executrix of this will, and desire that she shall not be compelled to give any security as I know that she will also will faithfully carry out its provisions as far as in her lies.’
Since the devolution of the property of one of the trusts is implicated in the present proceedings, the events which have ensued the death of the testatrix command attention.
Her two grandchildren Julia H. Adams and Pinckney Adams married. The former married Arthur H. Geissler and the latter married Florence Day. Julia B. Adams died testate in September, 1902, leaving her residuary estate to her two children, Julia H. and Pinckney, share and share alike. Julia H. Geissler diedin 1925 childless and survived by her husband, Arthur Geissler. By the terms of her will, she bequeathed $4,000 to her brother, Pinckney, and $1,200 to her niece Florence Day Adams (daughter of Pinckney), both bequests payable out of her share in the testatrix's estate, the residuary bequeathed to her husband.
The then trustees (the Pennsylvania Company, &c., and Andrew A. Blair) filed their intermediate account in the Essex County Orphans' Court which was allowed by a decree of that court dated January 8, 1926, in which the trustees were allowed their commissions on income, but not on corpus. The trustees petitioned that court for a decree of distribution of certain income in their hands, and the court by its decree dated February 4, 1927, ordered the income paid to Pinckney Adams which the trustees continued to do until his death. I may pause here to say that the defense of res judicata stems from this decree.
Prior to the filing of the original bill in this cause, Pinckney Adams and his wife were divorced. Three daughters had been born of that marriage, of whom one died in 1905 unmarried. The other daughters were Florence Day Adams, who married Carl Christian von Munthe Av Morgenstierne, and Elizabeth McCall Adams, now married to Palmer L. Clarkson. Pinckney Adams died on October 30, 1946, survived by his two daughters to whom he bequeathed in equal shares any interest he had under his grandmother's will. One G. Forrest Butterworth was named executor.
Florence Morgenstierne died testate on December 26, 1946, a resident of Norway, also naming Butterworth as executor. He is a party defendant to these proceedings as executor of the estates ofPinckney Adams a...
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Pennsylvania Co. for Banking & Trusts v. Clarkson, s. A--432
...contained no expression of a contrary intent. We agree with this determination, for the reasons expressed in the opinion below. 3 N.J.Super. 308, 65 A.2d 98. The appellants argue here, as they did below, that, under the principle of Res judicata, this interpretation is foreclosed by a decre......