Pistor's Estate, In re

• Decision Date: 13 October 1959
• Docket Number: No. A--10,A--10
• Citation: 30 N.J. 589,154 A.2d 721
• Parties: In the Matter of the ESTATE of Mary M. F. PISTOR, deceased (Trust for the benefit of Pauline Sainsbury et al.).
• Court: New Jersey Supreme Court

Page 589

30 N.J. 589

154 A.2d 721

In the Matter of the ESTATE of Mary M. F. PISTOR, deceased (Trust for the benefit of Pauline Sainsbury et al.).

No. A--10.

Supreme Court of New Jersey.

Argued Sept. 15, 1959.

Decided Oct. 13, 1959.

On appeal from a judgment of the Superior Court, Appellate Division, whose opinion is reported at 53 N.J.Super. 139, 146 A.2d 685.

Rodman C. Herman, Newark, argued the cause for appellant (Parnell J. T. Callahan, New York City, on the brief).

Coleman Burke, Summit, argued the cause for respondent Wayne Sainsbury Rae (Bourne, Schmid, Burke & Noll, Summit, attorneys).

Maurice Levinthal, Patterson, argued the cause for respondent John S. Sainsbury, Jr. (Ward & Levinthal, Paterson, attorneys).

William C. Connelly, Newark, argued the cause for plaintiff-respondent (Riker, Danzig & Marsh, Newark, attorneys; Edward J. Brown, Newark, on the brief).

PER CURIAM.

The judgment is affirmed for the reasons expressed in the opinion of Judge Goldmann in the Court below.

For affirmance: Justices BURLING, PROCTOR, HALL and SCHETTINO--4.

For reversal: Chief Justice WEINTRAUB and Justices JACOBS and FRANCIS--3.

FRANCIS, J. (dissenting).

In order to interpret the particular testamentary expression involved in this proceeding, it is necessary to consider a will drawn in 1887 and a codicil made in 1893. Thereafter three additional codicils were executed, one three months later in 1893, and the others in 1896 and 1897. Obviously, all of the instruments were prepared by an attorney or attorneys for a testatrix who was conscious of her testamentary responsibility. Unfortunately, in spite of the attention devoted to the disposition of her property, the ambiguity which must now be resolved crept into her devolutionary plan. At this late date, 61 years after her death, our effort can be likened only to a search for the needle of intention in a haystack of words. The majority of my colleagues feel that the Appellate Division found the needle. I do not think so.

In the original will, the testatrix divided her residuary estate into seven equal parts. Six of the portions were given outright to her sons and daughters, with the proviso that if any one of them predeceased her, leaving a child or children, that part should pass to the child or in equal shares to the children, if there were more than one. She testated further that if any of her children predeceased her without a child or children, the part should go to her surviving children and the surviving child or children of any deceased child, her surviving children to take equally and the grandchildren to take 'per stirpes and not per capita'.

The seventh part was placed in trust for her daughter Pauline, she to receive the income therefrom for life and the principal to pass to her child or children. And if any such child or children were dead, leaving a child or children, the 'grandchildren' and 'great grandchild or children' were to take, the former to share equally and the latter 'to take the share the parent would have taken if then living, and in equal shares if more than one.'

Throughout the will Mrs. Pistor spoke of children, grandchildren and great grandchildren. In no instance did she write 'heir' or 'heirs at law'. And it is plain that she was aware of the nature of per stirpital distribution among children by representation of a parent. Moreover, it must be noted that she was conscious of the marital status of her children because in the trust referred to above, she declared that the income should be 'to the use of my daughter Pauline, wife of Noel Evrringham Sainsbury, * * * free from the control or interference of her said husband.' Later in the first 1893 codicil, when she canceled the bequest of the outright seventh part to her daughter Madelaine, and put it in trust, the same mandate as to Madelaine's husband was inserted with regard to the use of the income. Thus, by language not open to question, husbands and wives of Mrs. Pistor's children and grandchildren were excluded from participation in the corpus of the estate and she inveighed specifically against any interference or control of the income by the husbands of the daughters whose shares were assigned to the trusts.

By the first codicil of 1893, about which the controversy centers, the trust for Pauline's life was continued but the provision for distribution of the corpus on her death to her children or grandchildren was expunged. Instead, the corpus was continued in trust with the specification that upon the death of any of Pauline's children (who would be a grandchild of the testatrix, although not described as such in the codicil), 'its * * * share' was given 'absolutely to its heirs at law, equally, per stirpes and not per capita'.

Why did the testatrix, who, in referring to direct descendants in her original will, always spoke of child or children, grandchild or grandchildren, or great grandchild or great grandchildren, discard such language in this codicil and direct distribution among the heirs at law of a grandchild or grandchildren? The change brought about the present conflicting claims. Daisy Harvey Sainsbury, the widow of a grandchild, Noel Sainsbury, the last surviving life tenant of the trust, asserts that as an heir at law of her husband, she is entitled to share equally with Wayne Sainsbury Rae and John S. Sainsbury, Jr., the great granddaughter and the great-great grandson of the testatrix (daughter and grandson of Noel).

The parties, as the adopted opinion of the majority indicates, are in agreement that New Jersey law is to be applied, that only personalty is to be distributed, and that 'heirs at law' refers to those who would take by intestate succession under the statute of distribution, N.J.S. 3A:4--2, N.J.S.A., unless a contrary intention of the testatrix appears in her will. Meeker v. Forbes, 84 N.J.Eq. 271, 93 A. 887 (Ch.1915), affirmed 86 N.J.Eq. 255, 98 A. 1086 (E. & A.1916); Lippincott v. Purtell, 98 N.J.Eq. 569, 131 A. 210 (Ch.1925).

The statute of distribution qualifies a widow as a distributee. Meeker v. Forbes, supra; Harris Trust & Savings Bank v. Jackson, 412 Ill. 261, 106 N.E.2d 188 (Sup.Ct.1952); In re Jury's Estate, 381 Pa. 169, 112 A.2d 634 (Sup.Ct.1955). In fact, she has occupied that status in this State at the command of the Legislature since 1795. Paterson, Laws of New Jersey (1703--1799), p. 156. The enactment represents the conscience of the community and the courts should not disregard it by disinheriting a widow or any other heir unless the conclusion is inescapable that the testator expressly or by necessary implication so willed. Godfrey v. Epple, 100 Ohio St. 447, 126 N.E. 886, 11 A.L.R. 317 (Sup.Ct.1919). A testator is presumed to know that a widow is an heir at law and must be deemed to have used the term with an awareness of that import. In re Mitchell's Estate, 206 Misc. 321, 132 N.Y.S.2d 292 (Surr.Ct.1954); Shook v. McConnell, 97 N.E.2d 111 (Prob.Ct., Ohio 1951); In re Jury's Estate, supra. In case of doubt, a construction of the will which more clearly serves the purpose of the statute should prevail. Shattuck v. Fagan, 337 Mich. 83, 59 N.W.2d 96 (Sup.Ct.1953); In re Burk's Will, 298 N.Y. 450, 84 N.E.2d 631 (Ct.App.1949), rehearing denied 299 N.Y. 308, 86 N.E.2d 759 (Ct.App.1949), and 300 N.Y. 498, 88 N.E.2d 725 (Ct.App.1949); Schouler, Law of Wills (1887) § 479. In ordinary circumstances, the interests of widows are to be carefully guarded. In re Klingenberg's Estate, 94 Cal.App.2d 240, 210 P.2d 514 (D.Ct.App.1949); and see Hand v. Marcy, 28 N.J.Eq. 59 (Ch.1877); In re Mitchell's Estate, supra. And in our State, where the lot of the wife in the estate of her husband has not improved substantially in the last hundred years, an interpretation of a will which deprives her of the statutory share should be accepted with great reluctance and only when the language is open to no other reasonable conclusion. See In re Santelli's Estate, 28 N.J. 331, 146 A.2d 449 (1958); Flexible Restraints on Testation, 69 Harv.L.Rev. 277 (1955).

From all that has been said, it must be assumed that the testatrix knew and intended the implications of the term 'heirs at law' when she inserted it for the first time in the codicil in question. And it cannot go unnoticed that she used it in connection with the distribution of a trust corpus which probably would not take place for four generations. No testatrix could foresee what the state of her direct descendants would be at that distant time. Perhaps this accounts for her failure to use 'direct heirs' which would have been consistent with the pattern of the original will. Cf. Cook v. Underwood, 209 Iowa 641, 228 N.W. 629 (Sup.Ct.1930). Conceivably at that remote time there might be no descendants of children and it is not unreasonable to conclude that she decided to let the law take its course and parcel out the trust to those persons who would then constitute her heirs at law. Thus in a factual context like the present one, regard must be had not only for what is but also for what might have been. Such reasoning gives recognition to the principle that when different words are employed with reference to a given subject matter, the law assumes that the testator intended a different meaning to be given to them. 2 Page on Wills (3d Ed. 1941) § 933, p. 880.

The majority feel that because the text used was 'heirs at law, Equally, per stirpes and not per capita' (emphasis added), Mrs. Pistor intended to refer to direct descendants in the blood line as she had in the original will and that the expression 'heirs at law' brought no new or broader connotation into the testamentary disposition. They find that distribution, according to the statute, is precluded because of the word 'equally', which is said to be inconsistent with the statutory apportionment of the estate. They recognize that 'equally' in the context is at war with 'per stirpes', but conclude that its meaning should be...