Parker v. Fid. Union Trust Co.

• Decision Date: 17 November 1944
• Docket Number: No. 149/636.,149/636.
• Citation: 63 A.2d 902
• Parties: PARKER et al. v. FIDELITY UNION TRUST CO. et al.
• Court: New Jersey Court of Chancery

63 A.2d 902

PARKER et al.

v.FIDELITY UNION TRUST CO. et al.

No. 149/636.

Court of Chancery of New Jersey.

Nov. 17, 1944. ^*

COPYRIGHT MATERIAL OMITTED.

Syllabus by the Court.

1. No particular form or ceremony is necessary to effect a dedication of land for cemetery purposes.

2. Bequests for the care, maintenance or improvement of a public or semi-public burial ground are uniformly held to be charitable in nature and not void as violative of the rule against perpetuities.

Bill by Edmund J. Parker and E. Ely Parker, executors and trustees under the last will of Annie Ely Parker, deceased, against the Fidelity Union Trust Company and others for a construction of testatrix's will and for instructions for guidance of executors and trustees.

Decree advised in accordance with opinion.

William Hartshorne and Arthur M. Goldberg, both of Freehold, for complainants.

Hood, Lafferty & Emerson and Sigurd A. Emerson, all of Newark, for defendant Fidelity Union Trust Co.

Snyder, Roberts & Pillsbury and John M. Pillsbury all of Atlantic Highlands, for defendant, Monmouth County.

Andrew J. Conover, of Freehold, for defendants Maplewood Cemetery Ass'n; First Presbyterian Church of Freehold and First Church of Christ Scientist of Freehold.

Charles F. Dittmar, of Freehold, for defendants Denna Clayton and the Woman's Club of Freehold.

BERRY, Vice Chancellor.

Annie Ely Parker, late of Freehold, Monmouth County, New Jersey, died March 16, 1931, seized of real and personal property valued as of that date at $77,867,74. She left a will dated January 18, 1924, and a codicil thereto dated November 12, 1929. They were admitted to probate by the Surrogate of Monmouth County on April 7, 1931. The complainants Edmund J. Parker and E. Ely Parker are named as executors of said will. They are also referred to in the will as ‘executors or trustees' and there are several bequests of money ‘to my executors in trust’. The executors duly qualified as such upon the probate of the will and have acted in that capacity, or as trustees, since that date, but no account of their administration of the estate has been filed.

By the Twelfth paragraph of her will, the testatrix provided as follows: ‘Twelth-I direct Fifty Thousand Dollars of my estate to be put in the Fidelity Trust Company of Newark New Jersey to be held in trust for Edmund J. and E. Ely Parker share and share alike. They to have the proceeds semi-annually. In case of the death of one the survivor to have the full benefit. Except in case there be legal issue, They to have the full amount of the Fathers Trust fund, also that of the Uncles should he leave no lawful issue-When Child or Children reach the age of twenty-five years, the principal shall be paid to the Child or Children share and share alike. The remainder of my estate both real and personal I give my two sons share and share alike.’

By a note on the margin of the third page of the codicil testatrix provided as follows: ‘Bequest Twelth of Fifty Thousand Dollars-In case there are no Child or Children The proceeds from the $50,000 to be used for Greenlawn Cemetery and The Monmouth Co. Tuberculosis Hospital, and the sum of One Hundred dollars, as a Xmas Gift annually to Annie P. Rue, for life.’

The proofs show that Annie P. Rue is dead.

Pursuant to paragraph ‘Twelfth’ of the will the executors have deposited with The Fidelity Union Trust Company the sum of $28,000.

On January 12, 1943, in proceedings in the Monmouth County Orphans' Court instituted by The Fidelity Union Trust Company claiming to be acting as trustees under decedent's will, the complainants as executors and trustees were cited to file an account.

On November 13, 1943, the executors filed their bill in this court against The Fidelity Union Trust Company and the County of Monmouth seeking a construction of the above quoted paragraphs of the will, restraint of the proceeding in the Monmouth County Orphans' Court, and a decree directing the Trust Company to account for the $28,000 deposited with it by the executors, and to transfer and turn over to complainants any investments and accumulated income in its hands resulting from that fund; adjudicating that the Trust Company is not a trustee under said will; that testatrix died intestate as to the $50,000 mentioned in paragraph ‘Twelfth’ of the will; that said fund is the absolute property of complainants as next of kin of testatrix, and that the County of Monmouth has no interest in said fund.

On the same day complainants filed a petition under the provisions of R.S. 2:26-71, subsection c, N.J.S.A., seeking a decree declaratory of the rights of the parties complainant and defendant to the bill of complaint above mentioned and restraint pendente lite against any proceedings in the Monmouth County Orphans' Court respecting the administration of decedent's estate. An order to show cause with preliminary restraint thereupon issued and on the return day thereof a further order was advised directing the complainants to amend their bill in order to bring before the court for construction the entire will of testatrix and to add as parties to this proceeding all persons, firms or corporations mentioned as legatees, devisees or otherwise in said will, or who may have or claim an interest in decedent's estate. And all parties (including the complainants) were thereby restrained pendente lite from further proceedings in the Orphans' Court, the rights of all interested parties to file exceptions to any account of the complainants as executors or trustees being in the meantime expressly reserved.

Pursuant to that order an amended bill of complaint was thereafter filed and all parties appearing to have any interest under testatrix' will have been made parties thereto.

For a clear understanding of the issues involved in the construction of this will and codicil, a copy thereof is herein set forth as follows:

‘In The Name Of God, Amen.

‘I, Annie Ely Parker, of the Borough of Freehold and County of Monmouth, and State of New Jersey; do hereby make, and publish, and declare: the folling to be my last will and testament.

‘First. I direct that all my just debts and funeral expenses be paid by my Executors hereinafter named; as soon as can be conveniently done after my decease.

‘Second. I give and bequeath to my Executors, the sum of Five Thousand Dollars in trust, that the said sum, shall be by them invested in securities; which are legal investments, in New Jersey; and the income thereof, shall be paid to the proper persons, or Corporation; for the purpose of maintaining a free bed in the Monmouth County Tubercular Hospital; as a Memorial to my Daughter (now deceased) Marie Parker Palmer.

‘Third. I give and bequeath-my Executors the sum of Two Thousand Dollars in trust, for the Presbyterian Church, of Freehold New Jersey, the income of which said sum shall be applied as follows: (A) So much thereof shall be the regular rent for Pew No. 78. in said Church. (B) The sum of Twenty dollars ($20.00) yearly for floral decorations in Memory of the deceased members of my family. (C) The balance of said yearly income I bequeath to the Womans Aid society of said Church. I further give outright the sum of Two Thousand dollars; for a Memoral Clock to be placed in the tower of the Presbyterian Church, of Freeheld New Jersey-or a Memoral Window, as my Executors may decide for the members of James Smith Parkers family.

‘Fourth. I give and bequeath to my Executors in trust, One seventy-five foot front, lot situated on Brinckerhoff Avenue for a site for a Christian Science Church; provided said lots are sold, prior to my decease, the equivelent of said lot, be given for a like purpose; if said Church be erected within two years after my decease; in the western part of the town of Freehold New Jersey-The income of said lot or amount; to be given my Executors in the lapse of time between.

‘Fifth. I give and bequeath to each ‘The Cecilian Club; and Womans Club of Freehold, New Jersey One Hundred Dollars.

‘Sixth. I give and bequeath to my nieces Lydia Reid Parker, Cornelia Bown Parker, Ellen White Parker, six sterling silver soup spoons six Teaspoons; six butter spreaders (Lily Pattern) Also my wardrobe, except what may be given as specific legacies which will be found in a sealed envelope in my private drawer of my Safe.

‘Seventh. I further give and bequeath my friend Dena Clayton One Hundred Dollars.

‘Eight. I give and bequeath my sons Edmund J. Parker and E. Ely Parker, each one of a pair of Dimond Earrings, also the balance of my jewelery, Dimonds and Silverware, to be divided equally between them. Further I give and bequeath to my sons Edmund J. Parker and E. Ely Parker Ten Thousand Dollars each within one year after my decease.

‘Ninth. I also direct that all conveyances of Real Estate, be made as Trustees of Annie E. Parkers estate, however I appoint my two sons above mentioned to be the Executors of this will; and empower them the right to sell any or all of my Real Estate or Personal property, whenever it shall in their opinion proper to do so.

Tenth. Should Edmund J. Parker or E. Ely Parker die without legal issue, or at the death of either. I appoint the Fidelity Trust Company of Newark New Jersey as Coexecutors; or upon death of both Sole Executor.

‘Eleventh. I further direct my Executors or Trustees to erect a suitable house as a residence for a caretaker for Greenlawn Cemetery to coast not less than Three Thousand dollars or more than Ten Thousand Dollars, within three years after my decease, unless said Cemetery has been sold.

‘Twelth. I direct Fifty Thousand Dollars of my estate to be put in the Fidelity Trust Company of Newark New Jersey-to be held in trust for Edmund J. and E. Ely Parker share and share alike. They to have the proceeds semi-annually. In case of the death of one the survivor to have the full benefit. Except in case there be legal issue-They to have the full amount of the Fathers Trust fund, also that of the...