Paul v. Paul

• Decision Date: 28 June 1926
• Citation: 133 A. 868
• Parties: PAUL v. PAUL et al.
• Court: New Jersey Court of Chancery

133 A. 868

PAUL

v. PAUL et al.

Court of Chancery of New Jersey.

June 28, 1926.

(Syllabus by the Court.)

Suit by J. Rodman Paul, trustee for Lucy P. Bigelow, under the will of John Marshall Paul, deceased, against Frederick M. Paul and others, for construction of a will. Will construed.

Starr, Summerill & Lloyd, of Camden, for complainant.

Lindabury, Depue & Faulks, of Newark, for defendants Elizabeth Paget, Laura Paul, and others.

French & Richards, of Camden, for defendants Frederick M. Paul and Rosalie P. Pisek.

LFAMING, V. C. The single inquiry herein presented is whether by the provisions of her will testatrix intended to exercise the power of appointment which she enjoyed under the will of her father.

Nowhere in her will does testatrix make specific reference to the power. Standing alone, the instrument would be declared inoperative upon the trust estate. Farnum v. Pennsylvania Co., 87 N. J. Eq. 108, 99 A. 145; affirmed Id., 652, 101 A. 1053. But when the provisions of the will are viewed in the light of extrinsic circumstances disclosed by the evidence it seems impossible to doubt that it was the obvious intent of testatrix to exercise the power given to her under her father's will. Viewed in the light of these circumstances the major provisions of the will are practically futile and without any sane purpose or rational intent with any other meaning attributed to them.

The situation presented is that of a testatrix with power to dispose of the trust fund by her will, and with practically no property of her own to dispose of. In that situation she made a great number of money bequests, ranging from $300 to $3,000 in amounts, and aggregating approximately the amount of the trust fund. Since there was practically nothing for these several bequests to operate on except the trust fund, and under the trust testatrix was clothed with power to make these bequests, it seems unmistakably manifest that in making the be_: quests she was exercising that power. The circumstance that in her will she made no specific reference to the power should not be regarded as sufficient to negative that-intent, if by necessary implication the intent is otherwise clearly manifest. Cueman v. Broadnax, 37 N. J. Law, 508, 513; Munson v. Berdan, 35 N. J. Eq. 376; Wooster v. Cooper, 59 N. J. Eq. 204, 223, 45 A. 381; Meeker y. Breintnall, 38 N. J. Eq. 345, 356; Lippincott v. Haviland, 93 N. J. Eq. 585, 587, 117 A. 147. Nor is that intent less clear by reason of the circumstance that many years later assets came to testatrix through causes that no one reasonably could have anticipated at the time the will and its codicil were made. The testimony to the effect that at the time the will and its codicil were made testatrix owned practically nothing on which these bequests could operate except the trust estate is not as searching as might well be desired, but it adequately discloses that obvious situation.

The only circumstance which may be said to militate against the conclusion that it was the plain intent of testatrix to exercise her power of appointment is the fact that in the residuary clause of the will testatrix used the expression, "my estate." In the special circumstances of this case that, to my mind, cannot be said to overcome the views already expressed. The evidence discloses that only two days bfore the date of her will testatrix wrote to her trustee, saying: "Will you kindly tell me about the amount of my estate in your hands as trustee so that I can make disposal of it more intelligently in my will?" It is clear that this letter and the testimony disclosing the custom of testatrix to refer to the trust fund as her estate cannot be received as evidence in aid of construction except, at most, for...