Ryder v. Myers

• Decision Date: 20 June 1933
• Parties: RYDER v. MYERS et al.
• Court: New Jersey Court of Chancery

167 A. 22

RYDER

v. MYERS et al.

Court of Chancery of New Jersey.

June 20, 1933.

Syllabus by the Court.

1. A bequest of "all the rest * * * of my jewelry," the will having first disposed of a portion thereof under specific bequests, is a specific and not a general bequest.

2. A bequest to a legatee, coupled with a "request that in the event any of my family shall express a desire for any of the jewelry, such request be granted * * * so that each member of the family shall have at least one piece" construed as a precatory trust.

3. The phrase "any of my family" as used by testatrix construed to comprehend those who would take under the statute of distribution.

4. Where a codicil to a will in express words ratifies the will, the will and codicil are made to speak as of the time and place of the publication of the last codicil.

5. Bequests to a brother and sister, both of whom predeceased testatrix, each leaving surviving children, held not to lapse; testatrix having failed to "otherwise direct" in her will.

Suit by Adrian H. Ryder, individually and as executor of the estate of Matylde M. Ryder, deceased, against Gladys Blumenthal Myers and others.

Decree in accordance with opinion.

Thompson & Hanstein, of Atlantic City, for complainant.

James McMenamin, Jr., of Atlantic City (William J. Carrig and Samuel Platcow, both of New Haven, Conn., of counsel), for respondent.

SOOY, Vice Chancellor.

The complainant, Adrian H. Ryder, individually and as executor of the estate of Matylde M. Ryder, deceased, has petitioned the court to construe decedent's will and for instructions as to the manner of distribution to be made by the complainant under the terms of the will and the codicils annexed thereto, and has also asked the court to determine whether or not certain legacies under the will have lapsed by reason of the fact that the legatees predeceased the testatrix.

The main difficulty under which the executor labors is the construction of the eighteenth clause of the will, and asks a construction thereof in order that it may be determined whether or not the legacy therein conkilned is a general or specific bequest and whether the "request" therein contained resulted in a precatory trust as to the jewelry therein mentioned, or any part thereof.

The eighteenth paragraph of the will reads as follows: "Item—All the rest, residue and remainder of my personal effects, such as wearing apparel, jewelry, and trinkets, I give and bequeath, in equal shares, to my nieces, Hettye B. Schoenfeld, and Gladys Blumenthal, with the request that in the event any of my family shall express a desire for any of my jewelry, such request be granted the ones expressing the desire for the same, so that each member of the family shall have at least one of my jewelry articles."

The bequest to Hettye B. Schoenfeld was revoked by a subsequent codicil to the will, leaving Gladys Blumenthal as the sole legatee under the eighteenth paragraph.

In the first eight items of the will, testatrix made money gifts to brothers, sisters, nieces, nephews, and charities.

Under items 9 to 17, inclusive, gifts of specific items of jewelry, rugs, and portraits were made to her sisters and nieces, and then, in the "item" under consideration by me, testatrix gave to Gladys Blumenthal "all the rest, residue and remainder of my personal effects, such as wearing apparel, jewelry and trinkets."

There is no attempt to dispose of the wearing apparel or trinkets to any one other than Mrs. Blumenthal and no dispute as to her right to have these items, but, as to the jewelry, testatrix provided "with the request that in the event any of my family shall express a desire for any of my jewelry, such request be granted the ones expressing the desire for same, so that each member of the family shall have at least one of my jewelry articles."

Was the legacy to Mrs. Blumenthal of the jewelry a specific or general bequest ?

In the case In re Low's Estate, 103 N. J. Eq. 435, at page 437, 143 A. 222, 223, Vice Ordinary Berry has so fully classified and defined legacies as to render any other citation unnecessary, and, as to general and specific legacies, he says:

"A general legacy may be defined as one which is payable out of the general assets of a testator's estate, such as a gift of money, or other thing in quantity, and not in any way separated or distinguished from other things of like kind. 28 R. C. L. p. 290, title, 'Wills,' § 264.

"A specific legacy is a gift by will of a specific article, or a particular part of the testator's estate, which is identified and distinguished from all others of the same nature, and which can be satisfied only by the delivery and receipt of the particular thing given. Id., § 203."

It seems to me to be entirely clear that paragraph 18 provides two separate specific legacies, first, "all * * * of my personal effects, such as wearing apparel * * * and trinkets," and, secondly, "all of my jewelry."

As to the first items, they are specific gifts to Mrs. Blumenthal. As to the second, they are also specific gifts, but the gift as to the jewelry is coupled with the request above set forth. Under the language of that request the question for determination is whether or not Mrs. Blumenthal takes the jewelry absolutely or in trust for the benefit of "any of my family who may express a desire" therefor.

In the case of Deacon v. Cobson, 83 N. J. Eq. 122, at page 124, 89 A. 1029, 1030, the late Vice Chancellor Learning, dealing with the construction of a similar provision in a will, said: "A rule of construction early adopted by the English Court of Chancery was to the effect that when, by will, property is given absolutely to a person, and the same person is by the testator 'recommended,' 'entreated,' 'requested,' or 'wished' to dispose of that property in favor of another, the recommendation, request or wish will be held to be imperative and to create a trust, if the subject and objects of the trust are certain. That rule of construction was adopted by our court of last resort more than half a century ago, and has since been uniformly recognized by the courts of this state; it cannot be now questioned in this court. Van Duyne v. Van Duyne, 15 N. J. Eq. 503; Eddy v. Hartshome, 34 N. J. Eq. (7 Stew.) 419; Wood v. Camden Safe Deposit Co., 44 N. J. Eq. (17 Stew.) 460, 14 A. 885; Eberhardt v. Perolin, 48 N. J. Eq. (3 Dick.) 592, 23 A. 501; s. c. (reversed on appeal, but soundness of rule not questioned) 49 N. J. Eq. (4 Dick.) 570, 25 A. 510; Cox v. Wills, 49 N. J. Eq. (4 Dick.) 130, 22 A. 794; s. c. (reversed only as to method of accounting) 49 N. J. Eq. (4 Dick.) 573, 25 A. 938. It necessarily follows that the requests of testatrix in the will and codicil here in question must be given the same force as though the language adopted by testatrix had been, wherever the word 'request' occurs, it is my will and I do hereby order and direct. With this rule of construction uniformly recognized by our courts for so long a period of time, testators and scriveners may be said to have been privileged to rely upon its existence and future recognition."

Under this authority, the jewelry mentioned in the eighteenth paragraph was bequeathed to Mrs. Blumenthal in trust, unless the "subject and objects of the trust" are uncertain. It is argued that they are "uncertain, indefinite and vague."

In addition to the case of Deacon v. Cobson, supra, Vice Chancellor Foster, in the case of Steinhart v. Wolf, 95 N. J. Eq. 132, at page 135, 122 A. 886, 888, said: "Furthermore, it is the well-settled rule that an implied trust will not arise unless the person or object intended to be benefited thereby is properly and definitely described, and the amount of property to which the trust shall attach is sufficiently defined; and this is especially so where a construction creating such a trust would be a contradiction of the terms in which the preceding bequest is given, or where, from all the circumstances, it is more probable that testator meant by the expression he employed to communicate a mere...