Rausch v. Libby

• Decision Date: 09 December 1942
• Docket Number: 149/16.
• Citation: 132 N.J.Eq. 527,29 A.2d 378
• Parties: RAUSCH v. LIBBY et al.
• Court: New Jersey Court of Chancery

29 A.2d 378

132 N.J.Eq. 527

RAUSCH

v. LIBBY et al.

149/16.

Court of Chancery of New Jersey.

Dec. 9, 1942.

[Copyrighted material omitted.]

Syllabus by the Court.

1. The situation and surroundings of the testator and the objects and persons of his affection are competent to show what testator meant by what he said in his will, but not to show what he meant to say, and this is equally true as to the testimony of the scrivener of the will as to instructions given by testator at the time of the preparation thereof, and it matters not what variation may be found between instructions given and the executed instrument. It is the latter which controls.

2. It is a rule of construction that it is not to be supposed that a man of intelligence would use words of dubious import to express the same purpose after showing that he was acquainted with the technical language used for declaring it with positive and decisive certainty.

3. Where an estate is given in one part of the instrument in clear and decisive terms, such estate cannot be taken away or cut down by raising a doubt upon the extent, meaning or application of a subsequent clause, nor by inference therefrom, nor by any subsequent words that are not as clear and decisive as the words of the clause giving the estate.

Bill by Regina Rausch against Rose Libby and others to construe the last will and testament of Max Granitz, deceased.

Decree in accordance with opinion.

Wm. Elmer Brown, Jr., of Atlantic City (Myer I. Kleinberg, of New York City, of counsel), for complainants.

Herman J. Finn, of Atlantic City, for defendants Joseph Granitz (also known as Grant) and Samuel Granitz (also known as Herman Granitz).

Kirkman & Mulligan, of Atlantic City, for defendant Rose Libby, individually and as Executrix of Estate of Max Granitz, deceased.

SOOY, Vice Chancellor.

This matter comes before the court on a bill seeking the construction of the last will and testament of Max Granitz, who departed this life on September 3, 1941, leaving him surviving as his sole next of kin four brothers and one sister.

The dispute between the parties arises over the construction to be placed upon the second and seventh paragraphs of the will. The second paragraph provides:

"Second :-I bequeath my estate, both real, personal and mixed, wherever it may be located;

"No. 1-Thirty Percent to my Mother-in-law, Mrs. Rose Libby, of Atlantic City, New Jersey.

"No. 2-Thirty Percent to my Sister, Mrs. Regina Rausch, of Brooklyn, New York.

"No. 3-Ten Percent to my Brother, Joseph Granitz, also known as Grant, of Brooklyn, New York.

"No. 4-Ten Percent to my Brother Frank Granitz of New York City, New York.

"No. 5-Five Percent to my Brother, Samuel Granitz, of Atlantic City, New Jersey.

"No. 6-Five Percent to my Brother, Ben Granitz of New York City, New York.

"No. 7-One Hundred Dollars to be paid to each of my six nieces.

"No. 8-One Hundred Dollars to be paid to my nephew.

"No. 9-One Hundred Dollars to be paid to Corine Bernstein."

The seventh paragraph provides: "Seventh :-I hereby, declare my executrix, Mrs. Rose Libby, to receive all monies deposited in the name of Max Granitz deposited in the Boardwalk National Bank of the City of Atlantic City, State of New Jersey, The Philadelphia Savings Fund Society and the Western Savings Bank, both of the City of Philadelphia, state of Pennsylvania. I hereby declare Mrs. Rose Libby to receive all my interests in the Partnership of Carter and Company, located at 1419 Boardwalk, Atlantic City, N. J., the partners being Nathan Kugel and Max Granitz."

Complainants and defendants except Rose Libby, contend that they are entitled to their respective percentages as bequeathed in the second paragraph of the will out of the entire estate of the decedent, excepting as reduced by paragraph 4, while Rose Libby contends that she, as an individual, is entitled to have absolutely all monies in the Boardwalk National Bank, the Philadelphia Savings Fund Society and the Western Savings Bank, as well as decedent's interest in the partnership of Carter & Company, as provided in the seventh paragraph of the will, together with the 30% of decedent's estate as set forth in item 1 of paragraph 2 aforesaid.

There is also a contention on the part of Rose Libby that irrespective of the will, she is absolutely entitled to certain United States Treasury bonds, as well as to a certain checking account in the Boardwalk National Bank, but a decision on the question raised by this contention is not necessary to the issue joined herein and nothing said herein shall be construed as affecting the question that may be ultimately raised with respect thereto.

Decedent's estate was appraised as of the time of his death at $40,298.59, as follows :

Corporate stock appraised at

$14,783.00

5 United States Treasury Bonds, Series D—payable on death to Rose Libby—redemption value as of time of decedent's death

3,950.00

Cash in Banks:

Philadelphia Saving Fund Society, Philadelphia, Pennsylvania

6,316.58

Western Savings Fund Society, Philadelphia, Pennsylvania

4,223.37

The Boardwalk National Bank of Atlantic City:

Checking account

5,226.77

Interest in Carter and Company Partner-ship-appraised at

5,798.87

140,298.59

It will be noticed that in the first six items of the second paragraph of the will testator disposed of 90% of his estate, which he described as "my estate, both real, personal and mixed, wherever it may be located." Testator could not have chosen more appropriate language for the disposition of 90% of his entire estate, no matter of what it consisted. He clearly and distinctly "bequeathed" 90% of "my estate, both real, personal and mixed, wherever it may be located." He then "bequeathed" $100 each to six nieces, $100 to a nephew and, by the third paragraph of his will, he "instructed" that $200 "be paid" to the Montefiore Cemetery, and in the fourth paragraph "directed" that funeral expenses and the payment to the cemetery be "deducted" from his entire estate before division should be made.

It seems quite apparent that the $800 in general legacies to nieces and a nephew was intended to be paid out of the 10% of testator's estate remaining after the division thereof into percentages, as heretofore set forth, and both sides concede that testator died intestate as to the remainder, testator having failed to include a completed residuary clause in his will.

We now come to paragraph 7 and must view its provisions together with what testator had said in the preceding paragraph of the will in order that, if possible, the entire will may stand as a harmonious whole. But first let it be observed that up to the seventh paragraph of the will there may be no doubt as to testator's intention with reference to the disposition of more than 90% of his entire estate. The language used to express that intention is appropriate and would appear on the surface to be that of an intelligent scrivener carrying out the intent of a likewise intelligent testator. The verb "bequeath" has been used as the operative word of the gifts enumerated therein, or words of equally clear import, i.e., in items 7, 8 and 9 of paragraph 2 he used the words "be paid," in the third paragraph he used the words "be paid" and in the fourth paragraph he used the word "deducted." Testator has taken care of his relatives, his mother-in-law and his friend, provided for his burial and that of his mother-in-law, for the payment of his debts and funeral expenses, and to that end he has expressly devoted 90% of his estate, "real, personal and mixed, wherever located," leaving 10% undisposed of, and providing also that his funeral expenses and the $200 payment to the cemetery be paid before a division be made of the 90%. If paragraph 7 were eliminated there could be no doubt that when testator "bequeathed" 90% of his estate to the beneficiaries therein named he meant to include 90% of his entire estate, including monies in bank, as well as his interest in the partnership.

In the course of the final hearing defendant Libby introduced evidence intended to show the situation and surroundings of testator and the objects and persons with whom he was familiar and upon whom his affections were resting, which was and is competent to show what testator meant by what he said in his will, but not to show what he meant to say. German Pioneer Verein v. Meyer, 70 N.J.Eq. 192, 63 A. 835; Holmes v. American Society, 123 N.J.Eq. 127, 196 A. 718. From this testimony it is quite evident that testator was very fond of his mother-in-law, Mrs. Libby; that she was his companion and lived in the apartment which he provided and, in general, looked after his household and welfare. This affection existing between them is amply evidenced, however, by the will itself, in which testator said that on the death of his mother-in-law, Mrs. Libby, "her body shall be placed in crypt No. 1 in my mausoleum next to my body."

Evidence of the scrivener was also admitted from which it appears that that gentleman was a college graduate but not a lawyer, that he had had no experience in drawing wills but that he was possessed of a text book on wills. The will itself was drawn on a printed form, with blanks to be filled in, which were so filled in by typewriter in so far as the bequests therein contained are concerned. The scrivener was also permitted to testify as to what instructions testator had given him for the preparation of the will. This testimony was also admissible to show what testator meant by what he said in the will but was not and could not be received to contradict the language used by testator. Moeckel v. Ludwig, 112 N.J.Eq. 437, 164 A. 690; Paul v. Paul, 99 N.J.Eq. 498, 133 A. 868; Von Fell v. Spirling, 96 N.J.Eq. 20, 124 A. 518. This testimony of the scrivener was at direct variance with what the court finds testator said in the will and must, therefore, be rejected. Testator was a business man of long standing, fully capable of expressing...