Page's Estate, In re

• Decision Date: 23 December 1970
• Citation: 274 A.2d 614,113 N.J.Super. 582
• Parties: In the Matter of the Estate of Parker Webster PAGE, Deceased.
• Court: New Jersey Superior Court

Page 582

113 N.J.Super. 582

274 A.2d 614

In the Matter of the Estate of Parker Webster PAGE, Deceased.

Superior Court of New Jersey Chancery Division.

Dec. 23, 1970.

Coleman Burke, Summit, for plaintiffs (Burke & Schmid, attorneys).

Clyde M. Noll, Summit, for defendant (Bourne & Noll, Summit, attorneys).

HERBERT, J.S.C.

Parker W. Page died in 1937 and his will was probated with the Essex County Surrogate. By Upon her death I give, devise, bequeath and appoint the principal in equal shares to my daughters Helen Page Wodell and Lois Page Cottrell and if either of my daughters should then be dead to such persons and in such proportions as such daughter may by will duly admitted to probate legally appoint and in default of such appointment to such daughter's issue then surviving in equal shares per stirpes.

paragraph Third of the will he left the residue of his estate in trust for his wife Nellie for life, and provided for remainders in the following words:

Nellie Page, the widow, died on April 14, 1970 at the age of 100. She was survived by the two daughters, Helen Page Halbach (named in Mr. Page's will as Helen Page Wodell) and Lois Page Cottrell. On April 19, 1970 Mrs. Halbach signed and acknowledged a document entitled 'Disclaimer and Renunciation' which reads as follows:

TO THE SURROGATE OF THE COUNTY OF ESSEX, STATE OF NEW JERSEY:

I, HELEN PAGE HALBACH (formerly Helen Page Wodell), residing at 49 Forest Drive, Short Hills, New Jersey, do hereby irrevocably disclaim and renounce all my right, title and interest as a remainderman of the trust established by my father, Parker Webster Page, in Paragraph THIRD of his Last Will and Testament, dated January 12, 1935, and admitted to probate by the Essex County Surrogate's Court on February 10, 1937.

Dated: April 19, 1970

HELEN PAGE HALBACH

On April 30, 1970 Mrs. Cottrell signed and acknowledged a paper identical in all pertinent respects to the one executed by Mrs. Halbach.

The disclaimer and renunciation of Mrs. Halbach and that of Mrs. Cottrell were delivered on May 4, 1970 to Summit and Elizabeth Trust Company, the corporate trustee of Mr. Page's residuary trust, and on June 15, 1970 were filed with the Surrogate of Essex County.

The trustees of the trust created by paragraph Third of Mr. Page's will have brought this action for approval of their accounts and in addition ask for a judgment determining the effect of the documents executed by Mrs. Halbach and Mrs. Cottrell and described above, and directing distribution of the trust assets.

Mrs. Halbach has two children and Mrs. Cottrell has three. These five are the only grandchildren Mr. and Mrs. Page ever had and all of them are of age.

In Dare v. New Brunswick Trust Co., 122 N.J.Eq. 349, 194 A. 61 (Ch.1937), a bequest of income from a small trust fund was rejected by the Salem Quarterly Meeting of the Society of Friends. Vice-Chancellor Sooy had this to say about the refusal to accept:

That a devisee or legatee cannot be compelled to accept a devise or legacy is definitely settled. See (1) Bogert on Trusts, vol. 1, §§ 171 to 173, and 1 Restatement, vol. 1, § 36 par. c; In re Howe's, 112 N.J.Eq. 17, 163 A. 234, and Olsen v. Wright, 119 N.J.Eq. 103, 181 A. 182, among the many cases that might be cited.

As to the time for renunciation or declining a legacy, the rule is that the rejection should be made promptly after the legatee has notice of the legacy, and while it is true that the legatee, being a remainderman, might be considered to have acted promptly if he gave notice after the death of the life tenant, still there is nothing that prevents the giving of such notice prior thereto. See Page on Wills, § 1202. (at 351, 194 A. at 62)

Page on Wills observes that testate succession depends upon the voluntary act of a testator in executing his will, and then comments:

As a part of this general theory of testate succession the devisee or legatee may prevent the passage of title to himself by renunciation, disclaimer and the like.

6 Bowe-Parker, Page on Wills, § 49.2 at 39 (1962), where many cases are cited, including Dare v. New Brunswick Trust Co., Supra.

The only sensible assumption is that the daughters of Mr. Page learned the provisions of his will soon after his death. It thus becomes appropriate to ask whether they should have renounced promptly after getting such knowledge even though Mrs. Page was then alive, and, as events proved, had many years ahead of her. My research, though not exhaustive, has not turned up any ruling that a remainderman's renunciation, to be effective, must occur within a reasonable time after learning that a will provides for him. The statement in Dare v. New Brunswick Trust Co. to the contrary has been quoted above. Clapp on Wills and Administration cites that case with approval for the proposition that a remainderman may wait until termination of a prior estate before accepting or rejecting benefits conferred upon him by a will, but must then act promptly. 5 N.J. Practice (3d ed. 1962), § 278 at 525. In Montclair National Bank & Trust Co. v. Seton Hall College of Medicine & Dentistry, 96 N.J.Super. 428, 233 A.2d 195 (1967), the court said in a different though somewhat related context,

Clearly there is a distinction between outright gifts of present interests with present enjoyment intended, and future interests, vested or contingent, with distribution not intended to be immediate. (at 437, 233 A.2d at 200)

On this subject Page, op cit., says:

If the interest is one which will not take effect in immediate possession, even if accepted, it is said that the remainderman and the like has the entire period during which the particular estate lasts, to determine whether he accepts or renounces. (§ 49.8 at 47, citing cases from Alabama, Missouri and New Hampshire)

My conclusion is that Mrs. Halbach and Mrs. Cottrell, having acted very promptly after their mother's death, effectively disclaimed and renounced the remainders in trust provided for them by the will of their father.

The conclusion just stated leads to this question: In the light of the disclaimers should the will be construed to bring into operation the provisions for the issue of Mr. Page's daughters, as though the daughters had died before their mother? The will is silent about possible renunciation of benefits by the daughters. Mr. Page did specify, however, that if a daughter predeceased him, the share such daughter would have taken if living should go to her issue, and he also specified--in language quoted above--that if either of his daughters, after surviving him, should die in the lifetime of his wife, the share in question should pass to the deceased daughter's issue in default of testamentary appointment by that daughter. Thus he was explicit about the contingency of death, but not about the contingency of disclaimer.

The disclaimers have produced a situation much like the fairly common one in which a life tenant voluntarily surrenders a life estate that a testator, judging by the language of his will, thought would be ended only by the life tenant's death. The usual result in cases of that type is acceleration of the remainder and treatment of voluntary termination by the life tenant as if termination had occurred through death. A portion of Vice-Chancellor Buchanan's opinion in Bennett v. Fidelity Union Trust Co., 123 N.J.Eq. 195, 196 A. 375 (Ch.1938), is especially pertinent here:

It is obvious that the question of when and to whom distribution is to be made is basically a question of what was the testator's intent in that behalf as expressed in his will. The testator intended that the wife should take an estate for her life (in one of the trusts it was an estate for life or widowhood), and that at the end of that life estate the Corpus should go to those persons whom he specifically designated in that behalf. The widow, however, cannot be compelled to take the life estate--nor to keep it even if she does take it. If the life estate which he gave her should be refused, or subsequently given up, by her, her life estate is thereby terminated prior to her death. His intent that she should have the fund for life is thereby rendered nugatory. To whom is it then to go? Naturally it is to go to whomsoever and at such time as he has directed, in such circumstances, by his will. But what does his will specify in this behalf? In most cases, just as in the instant case, the will does not specifically provide for such a contingency. Most people--lawyers as well as laymen--think of a life estate as ending at the death of the life tenant and not otherwise. Most wills, therefore, specify that the distribution which is intended to be made after the expiration of the life tenant's enjoyment of the property shall be made 'at' or 'after the death of (the life tenant)'; and fail to contain any specific provision as to what shall happen to the estate of the life tenant, prior to her death, refuses to have anything more to do with it. In the absence of such specific provision, the will must be searched for some implied provision--Some indication of what the testator desires. If any such can be found, it will control. If nothing of that kind can be found, the court must needs dispose of the estate in some way, and hence makes such disposition...