Salem Nat. Bank & Trust Co. v. Harkins, 148/439.

• Decision Date: 24 May 1947
• Docket Number: 148/439.
• Citation: 53 A.2d 373
• Parties: SALEM NAT. BANK & TRUST CO. v. HARKINS et al.
• Court: New Jersey Court of Chancery

53 A.2d 373

SALEM NAT. BANK & TRUST CO.

v.HARKINS et al.

148/439.

Court of Chancery of New Jersey.

May 24, 1947.

Suit by the Salem National Bank & Trust Company, trustee, against John Harkins, Jr., and others for construction of a will.

Decree advised in accordance with opinion.

Syllabus by the Court.

1. The province of the courts is to construe and not to make wills, and the will must be read from its four corners.

2. The testator's intention is the law of wills and that intention is to be determined from the entire will and all provisions of the will must be taken together so that it may stand in its entirety if possible.

3. The law abhors intestacy and it is the duty of the court to construe the will, if possible, so that it will pass all that the testator possessed.

4. A testator is always presumed to have intended to dispose of his entire estate and if such intent can be found in the expressed provisions of the will, the court, if possible, will so construe it.

5. Where there is a residuary clause in the will the courts have a strong disposition so to interpret it as to prevent an intestacy and the presumption against intestacy is particularly strong where the subject of the gift is the residuary estate.

6. In the absence of something in the context, or in the circumstances of the case, to exclude the natural import of the words of a will, the court is bound to give them effect according to their plain grammatical sense, and accord to them their natural meaning.

7. A general residuary clause disposes of all the residuum of testator's property; a particular residuary clause disposes only of the residuum of certain specified property, or of property of a certain kind or class. Tested by this rule it seems plain that the ‘Fifth’ paragraph of the will was intended to be a general residuary clause and to dispose of all the rest, residue and remainder of the testator's property after the purposes of the trust had been satisfied and the legacies paid.

Held, that the testator did not die intestate as to any portion of his property; that the three legatees named in the ‘Fifth’ paragraph of testator's will are entitled to immediate distribution of all the residue of testator's estate except the specific trusts set up in the ‘First’ and ‘Fourth’ paragraphs of the will.

Held, also, that the rule that a will should not be construed so as to disinherit the heirs at law or cut off from benefit any direct descendant of the testator, except in a plain case, has no application here, the testator having left no direct descendants, and it appearing that he deliberately chose from among his collateral relations those upon whom he wished to bestow his bounty.

Thomas G. Hilliard, of Salem, for complainant.

Albert W. Kauffmann, of Bridgeton, for defendants Anna Harkins, Thomas Harkins, Lewis Harkins, Hannah Harkins, Pearl Smith, John Smith, Mary Harkins Miller, Lawrence Miller, Alma Farrar, John Farrar, Esther Craddock, Charles Craddock, and Agnes Ryan.

John M. Summerill, Jr., of Salem, for defendants Florence H. Simms, John Simms, Catherine Harkins, Daniel Harkins, Jr., and Katherine G. Harkins.

Joseph Narrow, of Salem, for defendants Mary Maguire Haney, John Harkins, Jr., and William Harkins.

BERRY, Vice Chancellor.

The bill seeks a construction of the will of Thomas Harkins, late of the City and County of Salem, New Jersey, who died on July 25, 1934, and which will was on August 7, 1934, duly admitted to probate by the Surrogate of the County of Salem. All of the answering defendants except those represented by Mr. Kauffmann, join in the prayer of the bill for a construction of decedent's will. The defendants represented by Mr. Kauffmann have filed an answer in lieu of plea. A decree pro confesso has been entered against non-answering defendants. The facts have been stipulated. The following is a copy of the decedent's will:

‘I Thomas Harkins, of Salem, New Jersey, hereby make, publish and declare this instrument as and for my last will and testament.

‘First:-I give and bequeath unto The Salem Nat'l Bank and Trust Company of Salem, New Jersey, One Thousand Dollars, in trust, the income to be paid to The St. Mary's Church for the upkeep of my family's burial lots.

‘Second:-I give, bequeath and devise unto The Salem Nat'l Bank and Trust Company of Salem, New Jersey, all my property real, personal and/or mixed, in trust nevertheless, for the following purposes: To hold manage, control, rent, repair, invest and reinvest, collect income and such other powers as are usual in handling real estate, the income to be paid to my brother, Joseph Harkins of Salem, with power and authority to sell and convey and give conveyances in law, at public or private sale as in its judgment seems fitting. I further authorize and empower said Trustee to sell any of my property, at its discretion, and to invest the proceeds.

‘Third:-I direct my brother Joseph to provide for the maintenance, at his discretion, of my brothers, John Harkins and James Harkins, of Salem, New Jersey, and also to provide for their proper burial.

‘Fourth:-In the event that my my brother dies, I direct that Six Thousand Dollars be held in trust by The Salem Natl bank & Trust Company, the income to be paid to Mary Harkins, wife of Joseph Harkins, for and during her natural life, and after her death, the income from the said Six Thousand Dollars, shall be paid to my brother Daniel, of Penn's Grove, New Jersey, for the term of his natural life. Upon the death of Daniel Harkins, said income shall be paid for life to my sister, Mary Maguire Haney, now of St. Louis. Upon the death of Mary Maguire Haney, One Thousand Dollars to my niece, Anna Harkins Dandrow, Plattsburg, New York, absolutely is bequeathed.

‘Fifth:-All the rest, residue and remainder of my estate, left at the time of the death of my sister, Mary, shall be divided share and share alike between Daniel Harkins, Jr., Florence Harkins and Catherine Harkins.

‘Sixth:-I give and bequeath to Edward Griscom, Two Hundred Dollars and to boy employed by me named Stepler, One Hundred Dollars.

‘Lastly:-I nominate and appoint Joseph Harkins, of Salem New Jersey and The Salem Nat'l Bank & Trust Company, of Salem, the executors of this my last will and testament.

‘In witness whereof I have hereunto set my hand and seal this twenty-second day of July, 1934.

“Breslin' struck out in Item Second and ‘Harkins' interlined before signing.

‘Thos Harkins

‘Signed, sealed, published and declared by the above named testator, Thomas Harkins, as and for his last will and testament in the presence of us who, at his request, in his presence and in the presence of each other, have hereunto subscribed our names as attesting witnesses thereto.

‘M. Janet Widdifield R. N.

‘Mary Saul R. N.’

The Salem National and Trust Company duly qualified as executor and trustee under the above will. The trusts provided for in the first, second and fourth paragraphs of the will have been set up. Joseph Harkins, testator's brother, mentioned in the second paragraph of his will, is now dead, although he survived the testator and received the income from this estate up until the time of his death. His wife, Mary Harkins, and testator's brother Daniel, mentioned in the fourth paragraph of the will, are also dead. Testator's sister, Mary Maguire Haney, is still living and is a party to this proceeding. Testator's brothers John and James, mentioned in the third paragraph of the will, are dead.

No controversy exists as to the trust mentioned in the first and third paragraphs of the will. The controversy concerns the rest, residue and remainder of the estate referred to in the ‘Fifth’ paragraph thereof.

Counsel for the complainant poses the following questions:

1st-Did decedent die intestate with respect to the residue and remainder of his estate?

2nd-Does said remainder, upon the death of Joseph Harkins, John Harkins, and James Harkins, constitute a passive trust and should it be now distributed among the beneficiaries entitled thereto?

Counsel for the residuary legatees mentioned in paragraph ‘Fifth’ of the will answers the first of these questions in the negative and the second in the affirmative, and insists that the rest, residue and remainder of the estate, except for the $6,000 held by the trustee under the provisions of the ‘Fourth’ paragraph of the will, should now be paid to his clients. On the other hand, counsel for the other defendants, while admitting that the trusts established by the will, except those established by the ‘First’ and ‘Fourth’ paragraphs, are now passive, contend that the testator died intestate as to the corpus of the trust created by paragraphs ‘Second’ of the will except as to the rest, residue and remainder of the $6,000 trust provided for in paragraph ‘Fourth,’ and which admittedly comes out of the ‘Second’ paragraph trust; and that such rest, residue and remainder, except as aforesaid, is now distributable amongst the heirs at law and next of kin of the testator. These defendants contend that paragraph ‘Fifth’ of the will relates only to what shall remain of the $6,000 trust fund mentioned in paragraph ‘Fourth’ of the will after the death of testator's sister, Mary Maguire Haney, and after the payment of the $1,000 legacy out of that fund to the testator's neice, Anna Harkins Dandrow.

In considering the issues here presented I shall adopt the language of Vice Chancellor Sooy in Barrett v. Barrett, 134 N.J.Eq. 138, at page 142, 34...