Pistor's Estate, In re

• Decision Date: 12 December 1958
• Docket Number: No. A--568,A--568
• 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 Superior Court — Appellate Division

Page 139

53 N.J.Super. 139

146 A.2d 685

In the Matter of the ESTATE of Mary M. F. PISTOR, deceased

(Trust for the benefit of Pauline Sainsbury, et al.).

No. A--568.

Superior Court of New Jersey

Appellate Division.

Argued Dec. 1, 1958.

Decided Dec. 12, 1958.

Rodman C. Herman, Newark, for appellant Daisy Harvey Sainsbury, individually and as administratrix of the estate of Noel E. Sainsbury, deceased (Parnell J. T. Callahan, of the New York Bar, New York City, on the brief).

Maurice Levinthal, Paterson, for respondent John S. Sainsbury, Jr., by his guardian ad litem, Dorothy S. Rosenberger (Ward & Levinthal, Paterson, attorneys).

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

William C. Connelly, Newark, for respondent Fidelity Union Trust Co., substituted trustee of the trust created under paragraph Eleventh of the last will and testament and codicils thereto of Mary M. F. Pistor, deceased, for the benefit of Pauline Sainsbury et al. (Riker, Emery & Danzig, Newark, attorneys; Edward J. Brown, Newark, of counsel; William C. Connelly, Newark, on the brief).

Before Judges GOLDMANN, CONFORD and FREUND.

The opinion of the court was delivered by

GOLDMANN, S.J.A.D.

Daisy Harvey Sainsbury appeals from that part of the final judgment entered by the Essex County Court, Probate Division, determining that Wayne Sainsbury Rae and John S. Sainsbury, Jr., are each entitled to half the Corpus of the trust estate held by Fidelity Union Trust Company, as substituted trustee of the trust created under paragraph Eleventh of the last will and testament and codicils thereof of Mary M. F. Pistor, deceased, for the benefit of Pauline Sainsbury et al., and that she, as widow of Noel E. Sainsbury, Pauline's son, is not entitled to share in the distribution of that Corpus.

Plaintiff Fidelity Union Trust Company, as substituted trustee, sought approval of its fourth and final account, allowance of commissions for itself and a fee for its attorneys, and directions from the court as to the distribution of the testamentary trust estate. Pauline, decedent's daughter, had married Noel Evrringham Sainsbury, and Noel E. Sainsbury was their son. The defendants are Daisy Harvey Sainsbury, the widow of Noel E. Sainsbury by a third marriage; Wayne Sainsbury Rae, his daughter by a second marriage; and John S. Sainsbury, Jr., the son of John S. Sainsbury, deceased, who in turn was Noel E. Sainsbury's son by a first marriage.

Testatrix died March 26, 1898, a resident of Essex County, N.J., leaving a last will and testament and codicils thereto which were duly admitted to probate by the Essex County Surrogate. The trust estate has been administered in New Jersey by plaintiff since her death. By paragraph Second of her will, testatrix divided her residuary estate, both real and personal, into seven equal shares. In paragraphs Eleventh and Twelfth she provided as follows:

'Eleventh: As to the remaining equal share or seventh part of my residuary estate, I do give, devise and bequeath the same unto my sons Philip Pistor and William Pistor (the survivor of them or such one of them as shall undertake the execution of this trust provision), in trust to receive the rents, issues and profits thereof and to apply the same to the use of my daughter Pauline, wife of Noel Evrringham Sainsbury, during her natural life, free from the control or interference of her said husband, and without any power on the part of my said daughter to alienate or anticipate the same or any part thereof.

'Twelfth: Upon the death of my said daughter Pauline, or upon my death if she shall not survive me, I do give, devise and bequeath said share absolutely unto the child or children of my said daughter then surviving, and to the child or children of such as may then be dead but leaving a child or children then surviving--such my grandchildren to share equally and my great-grandchild or children, if any, to take the share the parent would have taken if then living, and in equal shares if more than one.'

By paragraph Thirteenth testatrix empowered her executor to sell any or all real estate which she might own at the time of her death, but she did not order the sale.

On August 5, 1893 decedent executed the first of four codicils, and in paragraph Third thereof declared:

'* * * I do further cancel and annul Clause Twelfth of my said will, and direct and provide in the stated thereof that any share which my said daughter Pauline's children might otherwise receive thereunder shall be divided into as many equal portions as there shall be children of her or me surviving, as the case may be, and the portions of such of said children as shall be or have been living at the time of my death be held in trust by my said trustees and the rents, issues and profits thereof applied to the use of each such child for life, and on its death I do give its said share absolutely To its heirs at law, equally, per stirpes and not per capita, the share of any such child of my said daughter born after my decease, I give absolutely to such child, if any.' (Italics ours.)

Philip Pistor and William Pistor refused to act as trustees under paragraph Eleventh. The New York Life Insurance and Trust Company, designated as successor trustee under the fourth codicil executed June 27, 1897, also declined to act. Fidelity Union Trust Company (formerly Fidelity Trust Company) was thereupon appointed substituted trustee of the trust created under paragraph Eleventh and the codicils for the benefit of Pauline Sainsbury et al., by order of the Essex County Orphans Court dated June 10, 1898. It qualified and has acted in that capacity since.

Decedent's daughter, Pauline Sainsbury, died in 1944. She had two children, Pauline Purviance, who died in 1915 without issue, and Noel E. Sainsbury who, at the time of his death on Christmas Day 1956, was married to Daisy Harvey Sainsbury. As noted, Noel had had two children; a son, John S., who died in September 1944 survived by his only child John S. Sainsbury, Jr.; and a daughter, Wayne Sainsbury, now Wayne Sainsbury Rae.

The verified complaint seeking approval of plaintiff's fourth and final account of the administration of the trust created under paragraph Eleventh of the will and codicils thereto for the benefit of Pauline Sainsbury et al., for the period from February 28, 1953 to February 27, 1957, shows that the Corpus of the estate consisted entirely of personalty having a book value of $51,584.62. Although decedent at the time of her death had apparently owned real property, it had been sold by the executor under the discretionary power of sale given in the will. Plaintiff's request for directions as to the distribution of the trust estate was caused by its uncertainty regarding the true meaning of decedent's directions contained in paragraph Third of the codicil of August 5, 1893, which provided that the principal of the trust created under paragraph Eleventh should be distributed, upon the death of any child of Pauline Sainsbury who became the secondary life tenant of the trust, to such child's 'heirs at law, equally, per stirpes and not capita.' Because of this language plaintiff was in doubt as to whether the principal of the trust estate remaining in its hands was distributable to the issue or lineal descendants of Noel E. Sainsbury, deceased, or to those who would be entitled to his personal property in the event that he died intestate. Under the former construction, Wayne Sainsbury Rae and John S. Sainsbury, Jr., respectively the greatgranddaughter and great-great-grandson of the testatrix, would each receive one-half of the trust estate. Under the latter construction, plaintiff was uncertain whether the class taking should be determined by the statute governing intestate succession of personal property of New Jersey or of the state wherein Noel E. Sainsbury was domiciled at the time of his death.

There is some doubt as to just what that domicile was. Plaintiff had been advised by the New York attorney of Daisy Harvey Sainsbury that her husband Noel was domiciled in New York at the time of his death. When it made further inquiry to ascertain the facts justifying such a conclusion, the attorney informed plaintiff that Noel had been living in New York City at a time when he accepted temporary employment in Bermuda with the U.S. Navy in 1941 during the war emergency. He married Daisy in 1942, and the two left Bermuda in 1951 after the termination of his government employment and the completion of a writing project. Noel had maintained several New York residences in the meantime, the last being the one he had at the time of his death. After leaving Bermuda he spent some time in Canada, New York and Florida, working on a book. He left New York in September 1956 to home in any one place. She concedes that died there. In her answer Daisy Harvey Sainsbury indicates that she and her husband Noel travelled extensively in Bermuda, Canada, New York and Florida, but apparently never established a permanent home in any one plane. She concedes that in the absence of definite knowledge as to his domicile, the provisions of the statute of distribution of the place where he died (Florida) should be presumed to be the same as those of the State of New Jersey, and consequently distribution made in one-third shares to herself, Wayne and John, Jr.

An order to show cause issued upon the filing of the complaint. Thereafter the Essex County Court, Probate Division, appointed Dorothy S. Rosenberger guardian Ad litem of John, Jr. By their answers the guardian Ad litem and Wayne Sainsbury Rae contended that the principal of the trust fund remaining in plaintiff's hands was under the law distributable to the issue of Noel E. Sainsbury, i.e., to John, Jr., and Wayne, equally.

At the hearing below it was agreed by all counsel that the question concerning the construction and interpretation of the will should be...