Passman v. Guarantee Trust & Safe-Deposit Co.

• Decision Date: 15 December 1898
• Citation: 41 A. 953,57 N.J.E. 273
• Parties: PASSMAN et al. v. GUARANTEE TRUST & SAFE-DEPOSIT CO. et al.
• Court: New Jersey Court of Chancery

41 A. 953

57 N.J.E. 273

PASSMAN et al.

v. GUARANTEE TRUST & SAFE-DEPOSIT CO. et al.

Court of Chancery of New Jersey.

Dec. 15, 1898.

(Syllabus by the Court.)

Bill by Elizabeth Passman and others against the Guarantee Trust & Safe-Deposit Company and others. Decree for complainants.

This bill is filed by the complainants, one of whom claims to be the owner of two twenty-second parts, and the other of nine twenty-second parts, of the residuary estate of one Thomas Costello, who died in the year 1877. The testator had made his will, dated December 24, 1875, which was proven on the 31st day of August, 1877, before the register of wills of the county of Philadelphia, Pa., where the testator was domiciled at the time of his death. An exemplified copy of the will has been filed in the office of the surrogate of Atlantic county, under the provisions of the New Jersey statute. By the terms of his will, the testator, Thomas Costello, directed the payment of his debts. He gave general money legacies, annuities, and special devises, and then disposed of the residue of his estate by the following provisions: "Item. All the rest, residue, and remainder of my estate, of whatsoever kind and wheresoever situate, I hereby give, devise, and bequeath unto Ambrose Kehoe and Edward Costello, both of the city of Philadelphia, and the survivor of them, and the executors, administrators, or successors of such survivor, forever, in trust, however, to collect the income, rent, and revenue thereof, and after paying and defraying the expenses of this trust, and the repairs, taxes, charges, and other expenses upon said residuary estate, to pay such net amount to the following named persons, and in the following proportions, to wit, first dividing the same into twenty-two shares or parts: Six shares or parts of said net income to be paid annually to Edward Costello, son of Patrick Costello, and to his heirs and assigns, forever. Four shares or parts of said net income to be paid annually to Margaret Costello, daughter of Patrick Costello, and to her heirs and assigns, forever. Two shares or parts of said net income to be paid annually to Elizabeth Costello, daughter of Patrick Costello, and to her heirs and assigns, forever. Two shares or parts of said net income to be paid annually to Henry Dunn, son of Ann Loughlin, and to his heirs and assigns, forever. Two shares or parts of said net Income to be paid annually to my sister, Ann Loughlin, and to her heirs and assigns, forever. Two shares or parts of said net income to be paid annually to Mary Hart, daughter of Andrew Hart, and to her heirs and assigns, forever. Two shares or parts of said net income to be paid annually to Margaret Hart, daughter of Andrew Hart, and to her heirs and assigns, forever. One share or part of said net income to be paid annually to Margaret Cullen, and to her heirs and assigns, forever. And the remaining one share of said income to be paid annually to Mary Costello, and to her heirs and assigns, forever. It is my will, however, and I hereby direct, that my said trustees shall so pay and hold the said income so that the same shall not be liable, responsible, or attachable for the debts, obligations, or liabilities of the respective persons so as aforesaid designated to receive the same. I hereby nominate, constitute, and appoint the said Ambrose Kehoe and Edward Costello executors of this my last will and testament, and I hereby revoke all former wills by me at any time heretofore made."

The testator, at the time of his death, was seised in fee of a tract of land in Atlantic City, N. J., at the northwest corner of Atlantic and Maryland avenues. The property passed under the above-quoted residuary clause of his will. The buildings on this property have become so decayed and weatherworn that they are scarcely tenantable, and are now so entirely dilapidated that they are not worth repairing. The lot of land, however, is valued at from fourteen to fifteen thousand dollars, irrespective of the worth of any buildings thereon. The executors and trustees named in the will have both died since they proved the will, and the defendant the Guarantee Trust & Safe-Deposit Company has been appointed trustee in their place and stead. The ownership of the several interests has been changed by death and transfer. The Guarantee Trust & Safe-Deposit Company, as trustee of the other present holders of the shares, and the executors of the deceased trustees, have been made defendants. The complainant alleges that the Guarantee Trust & Safe-Deposit Company has, as trustee, assumed the possession of the premises, and taken the rents and income therefrom, and that it is also proceeding to enforce the trust under the will of Thomas Costello. The complainants declare this action creates a cloud upon the title to the premises, and contend that the trust provision is illegal, because it seeks to create a trust in perpetuity; and they allege that they and the defendants are the absolute owners in fee simple of the lands and premises passing under the residuary estate of the testator, in the following shares and proportions: Elizabeth Passman, complainant, two twenty-second parts; Charles C. Babcock, complainant, nine twenty-second...