Polliak v. Smith

• Decision Date: 30 April 1952
• Docket Number: No. C--119,C--119
• Citation: 88 A.2d 351,19 N.J.Super. 365
• Parties: POLLIAK et al. v. SMITH et al.
• Court: New Jersey Superior Court

Page 365

19 N.J.Super. 365

88 A.2d 351

POLLIAK et al. v. SMITH et al.

No. C--119.

Superior Court of New Jersey Chancery Division.

April 30, 1952.

James M. Barry, Newton, attorney for plaintiffs.

Morris, Downing & Sherred, Newton (Willis H. Sherred, Newton, appearing), attorneys for defendants Andrew Smith, Michael Smith and Joseph Smith.

STEIN, J.S.C.

Maria Polliak died on September 12, 1950 leaving a will which was duly probated by the Surrogate's Court of Sussex County on September 25, 1950 in and by which she appointed plaintiffs, Paul Frank Polliak and Julia Polliak Fetzer, to be the executors thereof.

Her will, Inter alia provides as follows:

'Second: I give, devise and bequeath unto my beloved husband, Andro Polliak, if I predecease him, my real estate consisting of what is known as the Obadiah Bunn Farm and described in deed dated March 11, 1927, in which said deed Isaiah Bunn and wife convey said farm to my said husband and me, which said deed was recorded in the Sussex County Clerk's Office in Book 296 of Deeds at page 34, and which farm, by subsequent deeds was transferred to me individually, to have, hold, receive, use and enjoy the rents, interest, issues and profits thereof during the term of his natural life, together with the farm machinery and equipment consisting of all of the farm machinery and equipment thereon to have, told, receive, use and enjoy the rents, interest, issues and profits thereof during the term of his natural life; and from and after his decease, I give and devise said farm to my children Paul Frank Polliak and Julia Polliak, absolutely and forever, to have and to hold to them, their heirs and assigns, forever, in equal shares as tenants in common, share and share alike; and from and after the decease of my said husband, I give and bequeath all the machinery and equipment on said farm to my said son, Paul Frank Polliak, to him absolutely and forever.

'Third: Of my money on deposit in the Hardyston National Bank of Hamburg, New Jersey, I give and bequeath to my son Andrew Smith the sum of Four Hundred ($400.00) Dollars; of said money I give and bequeath to my son Michael Smith the sum of Four Hundred ($400.00) Dollars; of said money I give and bequeath to my son Joseph Smith the sum of Four Hundred ($400.00) Dollars.

'Fourth: In the event that my said husband predecease me, then and in that event I give and devise said farm to my children Paul Frank Polliak and Julia Polliak, absolutely and forever, to have and to hold to them, their heirs and assigns forever, in equal shares as tenants in common, share and share alike. In the event that my said husband predecease me, then and in that event I give and bequeath all of said farm machinery and equipment on said farm to my said son Paul Frank Polliak, to him absolutely and forever.'

Testatrix and her husband for a number of years prior to their respective deaths operated a dairy farm in Sussex County. The farm consisted of approximately 125 acres of land. It contained a dwelling house, cow barn and the usual farm outbuildings together with the necessary farm machinery and implements. A herd of approximately 40 or 50 cows was always maintained for the production of milk. It was customary to replace non-productive cows with fresh stock and to raise young stock for the purpose of such replacement. Part of the farm acreage was used to grow hay and ensilage used as feed for the herd. The milk produced was sold to various creameries.

Testatrix' husband, Andrew Polliak, managed the farm until his death which occurred on February 26, 1949. From and after his death the farm was managed by testatrix' son, Paul F. Polliak, one of plaintiffs herein who, together with his sister, Julia Polliak Fetzer the other plaintiff, lived with their parents on the farm. She assisted her mother with the household duties.

At the time of testatrix' death there was on deposit to her credit in the Hardyston National Bank of Hamburg, the sum of $885.82.

In addition to the plaintiffs, testatrix was survived by five other children by a former husband named Smutnak. Three of these children later changed their surnames to Smith. All of said children are parties defendant herein.

Plaintiffs are in doubt as to whether under the last sentence of the fourth paragraph of the will such articles of personal property as the live stock, hay, household furniture and other personalty used as an adjunct to the operation of the farm passes to Paul Frank Polliak, and whether the bequests in the third paragraph are specific legacies and abate proportionately or are general legacies to be paid in full from the general estate, wherefore they bring this complaint seeking construction of testatrix' will and instructions as to their duties thereunder.

It is the general rule in this State that the intention of the testator controls the construction of wills, First Nat. Bank of Toms River v. Levy, 123 N.J.Eq. 21, 195 A. 820 (Ch. 1938); Crocker v. Crocker, 112 N.J.Eq. 203, 164 A. 9 (Ch. 1933); Holbrook v. Greene, 125 N.J.Eq. 337, 5 A.2d 730 (Ch. 1939); that the will must be read from its four corners and the intent of the testator gathered from the whole document. Murphy v. Murphy, 118 N.J.Eq. 108, 177 A. 682 (Ch. 1935), affirmed 119 N.J.Eq. 83, 180 A. 829 (E. & A. 1935); Schaefer v. Gessler, 121 N.J.Eq. 42, 188 A. 439 (Ch. 1936); Van Nest v. Van Nest, 126 N.J.Eq. 234, 8 A.2d 558 (E. & A. 1939).

The inquiry therefore resolves itself into the question: what did testatrix mean by her use of the word 'equipment' in the last sentence of the fourth paragraph? If she meant all personalty including live stock, hay and household goods, then such articles passed to Paul Frank Polliak under the fourth paragraph of the will. If such was not her intention, then she died intestate...