Scarbor. v. Scarbor.

• Decision Date: 06 May 1943
• Docket Number: 139/106.
• Citation: 34 A.2d 791
• Parties: SCARBOROUGH et al. v. SCARBOROUGH et al.
• Court: New Jersey Court of Chancery

34 A.2d 791

SCARBOROUGH et al.

v.SCARBOROUGH et al.

139/106.

Court of Chancery of New Jersey.

May 6, 1943.

COPYRIGHT MATERIAL OMITTED.

Suit by Paul Claypoole Scarborough and others, executors of the estate of Hiram Edwin Scarborough, deceased, against Irving Johnston Scarborough and others for a construction of certain provisions of decedent's will.

Decree in accordance with opinion.

1. In construing a will, a court will endeavor to give effect to every part thereof, and within all reasonable limits will attempt to reconcile apparently inconsistent provisions; in this connection, the provisions of the several clauses of a will are of greater importance than their relative positions in the will.

2. Although no express words creating a trust are used by a testator, nevertheless a testamentary trust may be found by implication where it is manifest that such is the intention of the testator, or that the testator's obvious purpose cannot be executed except through the instrumentality of a trust, or where executors are given duties beyond their ordinary functions as such.

3. A power of sale of trust property will be understood to have been conferred by implication, where from the terms of the entire will it is clear that some duty has been imposed by a testator upon his executor or trustee which necessitates the exercise of the power to perform the duty.

4. A legacy or devise does not violate the rule against perpetuities if the vesting of the gift, as distinguished from its possession or enjoyment, must necessarily occur within the period of time limited by the rule.

5. Evidence aliunde the will is admissible to disclose the situation and surroundings of a testator, and the objects and persons with whom he is familiar and upon whom his affections were resting, in order that it may be ascertained what he meant by what he said in his will. Stating the rule in the negative, the intention of a testator cannot be sought in the circumstances surrounding him at the making of the will if it is not somewhere seen in the will itself.

6. The rule of construction which, prima facie, excludes illegitimates from participating in a gift to children or grandchildren has no application where the testator has mentioned a boy and a girl by their Christian names in his will and specifically designated them his ‘grandson’ and ‘granddaughter’, respectively.

7. The intention of the testator is the law of wills; when that intention has been ascertained, if its fulfillment would not be contrary to law, it will prevail over technical rules and words in either their technical or ordinary meaning.

8. A testator devised property in trust, to pay the income to his son for life, and to distribute the corpus (after the son's death) to the son's surviving ‘children of the present wedlock’. It was established, among other circumstances, that the son had a wife from whom he was separated, and that there was a child of that union for whom testator entertained no affection; that the son had later entered into a meretricious relationship with another woman and that two children were born of that relationship; that testator knew and loved the latter two children, and called them his grandchildren, and that in writing their mother he signed himself ‘father’. Held: that the expression ‘present wedlock’ was not employed by testator in its technical sense, but was intended to mean and describe the then existing relationship between his son and the woman who had borne him two children; and that by the phrase ‘children of the present wedlock’ was meant their son and daughter whom testator specifically called his ‘grandson’ and ‘granddaughter’, to the exclusion of the legitimate child of testator's son.

Bleakly, Stockwell & Zink and Harry F. Stockwell, all of Camden, for complainants.

Norcross & Farr and Frank S. Norcross, all of Camden, for Frank S. Norcross, guardian ad litem of Frances Marie Scarborough, and George O. Philips, trustee.

J. Albert Homan, of Trenton, for Edward L. Whelan, guardian ad litem of Nancy and David Scarborough.

Mitchell H. Cohen, of Camden, for Mitchell H. Cohen, guardian ad litem for Janet E. Scarborough.

George L. Feaster, of Plainfield, for Irving Johnston Scarborough.

WOODRUFF, Vice Chancellor.

Complainants are the executors of the estate of Hiram Edwin Scarborough, late of North Plainfield, Somerset County. By their bill they seek a construction of certain provisions of their decedent's will.

The first question: Does the will vest testator's son Paul with an estate in fee simple in an undivided half of testator's realty, as tenant in common with his brother Irving or with trustees under the will? This question is prompted by the unconventional arrangement and the awkward phraseology of the will. The instrument, it is conceded by all parties in interest, was drawn by the testator, a man unlearned in the law.

The provisions of the will to which reference will be made in this opinion are:

‘First:-I request and direct my execuor trustees tors-hereinafter named to pay and satisfy all my just debts and funeral expenses, and a marker to my plot if not arranged.

‘As my beloved wife is deceased, I write this new testament, but here bear testimony to her beautiful character, devotion, fidelity and loyalty to me.

‘Second:-I give and bequeath to my sons Paul Claypoole Scarborough, and Irving Johnston Scarborough, equal shares in all my real, and personal property, such equal division of furniture, or furnishings, silver, or other household articles of mine as they may suitably arrange between themselves; Also, of the residue of my estate, following subsequent bequests, or not restricted by other clauses or paragraphs, relating to any portion of the above.

‘Third:-If either of my sons predecease, or be deceased at the time of my death, their children of the present wedlock shall heir equally of parent portion, and receive any earned income, but not receive the pincipal thereof until attaining age twenty five.

‘Fourth:-I give and bequeath the Mother picture to my son Paul, also my gold cuff links (Mary's gift to me), also, the Marine Binoculars heired from my father, also, to my sons the cherry and walnut chests, heired from my father,-they to make suitable selection of same.

‘Fifth:-I give and bequeath to my grandchildren equal shares of stock held by me at this time in the Canadian Pacific Ry. Co., The Lehigh Coal Co., and the Pennroad Corporation, or to their parents if they predecease. The above Stock is of nominal value.

‘Sixth:-In view of the critical conditions confronting my son Irving, he being unemployed, a long time, I deem it prudent that I here stipulate in regard to his share, that he receive not the principal, but the income only derived therefrom. I therefore direct my executors to pay him the income thereof as earned and becomes due; the principal whereof be preserved as far as possible, and be paid to children surviving as stated under clause two. If he decease, the income be paid his widow until the children attain the age of twenty five.

‘Seventh-to my neice Hallie I leave the small bureau Cabinet once owned by her grandmother Scarborough.

‘To my brother-in-law Dr. H. Leon Jameson I leave my gold watch and chain (gift from Mary), and bear recognition of his great help to me.

‘To my nephew Edward Rittenhouse I leave my three vol's (subscription) Shakesphered, the same to be rebound and delivered.

‘To my grandaughter Janet I leave the Kodack Camera of her grandmother.

‘To my grandson David I leave my trout pole.

‘To my grandaughter Nancy I leave the Victrola.

‘To my brother-in-law Earle C. Jameson, I leave my gun-gift of the Cowperthwaites.

‘To son Paul I leave the Citation on the return of the binoculars from the Navy Dep't signed by the then Secretairy of the Navy Frankin D. Roosevelt, and Check for $1.00 attached.

‘Eighth:-In reference to any debts owing me by either heirs, my executors are requested to adjust.

‘Nineth: My executors in view of the foregoing are not restrained from selling, or reinvesting the funds of my estate as need shall arise, or such reinvestment or sale shall be for the best interests of my estate.

‘Nineth: I nominate and appoint my son Paul Claypoole Scarborough, and my nephew Edward Rittenhouse of Lansdowne Pa. the executors or trustees of this my last will and Testament. In the event of the demise of either I request my brother in-law substitue. And I further order and direct my said executors hereof shall not be required to give security to act as executors, or their now residence in or out of the State of New Jersey.’

Testator chose to place the provision disposing of his residuary estate at the beginning rather than at the end of his will, and to follow rather than to precede this provision with specific bequests. Nevertheless, the testator was careful to guard against possible conflict of these provisions and to make his intention clear; in dividing his residuary estate equally between his two sons in paragraph two, he specifically reserved and excepted the articles of personal property later bequeathed by paragraphs four, five and seven.

The provisions of the different clauses of a will are of much greater importance than the relative positions in which the clauses appear in the will. It is an established rule of construction that a court will endeavor to give effect to every part of a will, and within all reasonable limits will attempt to reconcile two apparently inconsistent provisions rather than to ignore either, or to declare both void. Rules of construction were formulated to aid courts in ascertaining the intention of testators. Where, as here, it is clear on the face of the will that testator intended all of the clauses of his will to be given effect, these rules serve to confirm the interpretation. Page on Wills, Section 932; Hendershot v. Shields, Ch., 42 N.J.Eq. 317, 3 A. 355; Rogers' Ex'rs v. Rogers, Ch., 49 N.J.Eq. 98, 23 A. 125; Byrne v. Byrne, Ch.,...