Rowley v. Currie
| Decision Date | 09 April 1923 |
| Citation | 120 A. 653 |
| Parties | ROWLEY et al. v. CURRIE et al. |
| Court | New Jersey Court of Chancery |
Bill by Margaret A. Rowley and others as executors and trustees under the will of Daniel A. Currie, deceased, against Norman Currie and others, to determine the distribution under a clause of the will. Decree ordered.
Morrison, Lloyd & Morrison, of Hackensack, and Guernsey Price, of New York City, for complainants Margaret A. Rowley and children.
Wakelee, Thornall & Wright and LeRoy Vander Burgh, all of New York City, for other complainants.
Clifford Chalmer, of New York City, and Jason R. Elliott, of Englewood, for defendants Leamon.
Reed, Hetfleld & Crane, of Plainfleld, for defendants Norman W. Currie and others.
The bill in this suit was filed by the executors and trustees under the will of Daniel A. Currie against the nephews and others of blood of said Daniel A. Currie, for the purpose of having determined the distribution of the residuum of the estate of Daniel A. Currie, and for instructions from the court as to certain matters connected with their duties as executors and trustees.
At the conclusion of the hearing, and upon final argument, it is my recollection that all the questions in dispute as to the various clauses in the will were disposed of save one. This was the question arising over the second clause of paragraph 23 of the will, which reads as follows:
"Two-thirds of my said estate less one-twentieth leaving nineteen-thirtieths (19/30s) of my said estate to be divided equally, share and share alike, among such of my heirs as would have taken, excepting Agnes Ferguson and her heirs, as would have taken under the laws of the state of New Jersey had I died intestate, and also to Mrs. Margaret A. Rowley and her children."
The testator, who lived in Englewood, died February 28, 1911. A large part of his estate was left in trust for his wife and his sister for life and for Mrs. Rowley for three years after his death. Mrs. Rowley, with her three children, went to live with Dr. Currie in 1903 as housekeeper at the large house owned by him in Palisade avenue, Englewood. They continued to live there until the doctor's death in 1911. Mrs. Rowley nursed Dr. Currie for months in his last illness. The testimony is that Dr. Currie's wife was mentally incompetent, and that this was the reason for installing Mrs. Rowley in his home. He made ample provision for his wife and his sister as long as they lived. His sister died October 6, 1912. His wife died February 28, 1918, and the time has now arrived for the distribution of the residuary estate. As before stated, the only question which I am now called upon to decide is how much of the residuary estate do each of the members of the Currie and Rowley families take under the second paragraph of the twenty-third subdivision of the will above quoted. The persons now interested in the construction of this part of the will are seven nephews and nieces of the testator, three children of a nephew who predeceased him, and Mrs. Rowley and her three children.
The heirs and next of kin at the time of the death of Dr. Currie were: (1) Elizabeth Jane Currie, sister, who died October 6, 1912. (2) Fannie M. Currie, wife, who died February 28, 1918. (3) Norman, Thomas, John, Orange J. and William Currie, children of John Currie, a deceased brother. (4) Elena Lockhead, daughter of Margaret Van Slyke, a deceased sister. (5) Agnes Ferguson, daughter of Robert Currie, a deceased brother. (6) Ralph, Agnes and Marion Leamon, children of Augustus Leamon, a son of Mary Leamon, a deceased sister of the testator.
All of these perons were living at the time the will was made, and there has been no change since that time. Agnes Ferguson, another niece of the testator, died December 13, 1915, but, as she and her heirs were expressly excluded from the participation in the distribution of this fund, her death does not affect the result.
This is a brief summary of the will of Dr. Currie:
I. Debts to be paid.
II. Personal effects to nephews; William A. Rowley named erroneously as one of the nephews.
III. Harness, horse, etc., to associate, Dr. Phillips.
IV. Medical library, etc.; specific legacies.
V. Trusts for cemeteries.
VI. Specific legacy of $3,000 to Mrs. Rowley "in recognition of faithful services rendered me and my household during my prolonged illness, the same to be paid to her within thirty days after the probate of this my last will and testament; and in case it be found that funds are not available to pay the whole amount within the time specified then so much thereof as are available be paid her and the balance without delay, when my estate becomes in funds."
VII. Provision for the education of Dorothy Rowley.
VIII. The residuum in trust for the support of his wife and sister, Mrs. Rowley being one of the trustees.
IX. Real estate directed to be sold at auction.
X. House at Dwight Place and Palisade avenue, Englewood, a home for wife and sister. This clause adds provision for Mrs. Rowley saying: "It is my wish, and I hereby direct, that Mrs. Margaret A. Rowley shall continue as now the custodian of the domestic management of my home, as I have every confidence in her honesty and ability."
XL Provision of $50 a month for Mrs. Rowley "for her personal services as long as she is the custodian of my home and looks after the domestic welfare of my wife and sister or either one of them as hereinbefore provided."
XII. Provision that while Mrs. Rowley is custodian her daughters shall reside with her until they become 21 years old without charge, and the son, William Rowley, may reside with her, paying monthly board to the satisfaction of the executors.
XIII. "Thirteenth: It is my wish and desire that my executors have Mrs. Margaret A. Rowley appointed the legal guardian of my wife as soon as possible after my decease."
XIV. Provision for wife in lieu of dower.
XV. After death of wife and sister bric-a-brac to specific legatees.
XVI. Upon death of wife, certain specific legacies as follows:
Norman Currie
2,000 00
John A. Currie
2,000 00
Orange Judd Currie
2,000 00
Daniel A. Currie, Jr
1,000 00
William Currie
2,000 00
Thomas Currie
2,000 00
Robert A. Currie
2,000 00
Agnets Ferguson
600 00
Rev. John Lochhead
600 00
Dr. S. Justina ermentrout
600 00
XVII. Five hundred dollars ($500) to Daniel A. Currie Beattie.
XVIII. Trust for William Buchanan, coachman.
XIX. Three thousand dollars ($3,000) to St. Paul's Episcopal Church, Englewood.
XX. Provision for 25 per cent., to Mary Hughes Armstrong (Mrs. Rowley's sister) of the net profits on the sale of lands.
XXI. Provision regarding fund out of which moneys are to be paid.
XXII. Provision regarding cemetery lot being used by Mrs. Rowley and her immediate family.
XXIII. This is the clause chiefly under discussion in this suit. It provides, after the death of both wife and sister, for the use by Mrs. Rowley of the residuum of the estate for three years. It then provides: "Two-thirds of my said estate less one-twentieth leaving nineteen-thirtieths (19/30) of my said estate to be divided equally, share and share alike, among such of my heirs at law excepting Agnes Ferguson and her heirs as would have taken under the laws of the state of New Jersey had I died intestate and also to Mrs. Margaret A. Rowley and her children." It then provides that an undivided one-twentieth of two-thirds is to be divided equally among various persons named, and then provides that the remaining one-third of the residuum shall go the state Grand Lodge of Masons for New Jersey, to be applied to the support and maintenance of the present or any future Masonic House established or to be established by said Grand Lodge.
XXIV. Bequest with reference to advance to one John N. Lemon.
XXV. Appointment of executors and trustees, Mrs. Rowley being the first named.
It is contended, in behalf of the nieces and nephews and the children of the deceased nephew, that this paragraph should be construed to give one share of the fund to each of the seven nephews and nieces, one share to each of the three children of the deceased nephew, and one share to each of the four members of the Rowley family, viz: One-fourteenth of the fund to each.
Counsel for the Rowleys contend that the testator meant two classes—the heirs comprising one class and the Rowleys the other— that each take one-half of the nineteen-thirtieths. The cases cited in their behalf and immediately referred to, in my judgment, do not sustain this contention.
In Wintermute v. Ex'r of Schneider, 3 N. J. Eq. 489, the chief question involved was whether, under a bequest to William Schneider and his heirs, the father took the legacy, or whether his children were entitled to any part of it. The court held that the children were not entitled to it, and the legacy went to the father.
In Stoutenberg v. Moore, 37 N. J. Eq. 63, cited, the question was...
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