Schmidt's Estate, In re
| Decision Date | 05 January 1956 |
| Docket Number | No. 150523,150523 |
| Citation | 119 A.2d 786,38 N.J.Super. 524 |
| Parties | In the matter of the ESTATE OF Alfred SCHMIDT, deceased. |
| Court | New Jersey County Court. New Jersey County Court — Probate Division |
George P. Moser, Union City, for executors.
Morton Isaacs, Union City, and Milton Rosenblum, Jersey City, for Eileen Schmidt.
Leon M. Rosen, Jersey City, guardian ad litem for Alfred Schmidt, Jr., and Joy Campbell, infants, pro se.
COOLAHAN, J.C.C.
Alfred Schmidt, died on March 15, 1954, a resident of Hudson County, New Jersey, and his last will and testament has been duly probated in the Surrogate's Court of Hudson County. In connection with the settlement of the first intermediate account the executors seek direction as to the distribution of a certain asset concerning which there has arisen doubt.
The sole question presented is whether the phrase 'any cash in any bank account or bank accounts' as used in the last will and testament of decedent comprehends the sum of $24,000 in cash which was found in a safe deposit box maintained by the testator during his lifetime.
The last will and testament of decedent contains the following provision:
'Second: I give and bequeath to my wife, Eileen Schmidt, the remainder of Any cash in any bank account or bank accounts after the payment of my debts, funeral expenses and administration expenses as provided for in paragraph One, together with all of my personal effects, to wit, household furnishings, jewelry, clothing and my automobile or automobiles that I might own at the time of my death and any stock in Weehawken Engineering and Manufacturing Company Inc. of which I might die seized.' (Italics supplied.)
In addition to the assets mentioned in the terms of the will there was discovered in the safe deposit box aforesaid the sum of $24,000. This cash sum is claimed by the widow of decedent under paragraph Second of the will. The guardian Ad litem appointed by the court on behalf of Alfred Schmidt Jr., and Joy Campbell, infants, objects and contends the decedent died intestate as to this cash fund which must be distributed in accordance with the provisions of N.J.S. 3A:4--2, N.J.S.A.
The court is mindful of the general principle that in a matter of doubt a will is to be construed, if possible, so as to avoid intestacy. Polliak v. Smith, 19 N.J.Super. 365, 88 A.2d 351 (Ch.Div.1952); Hackensack Trust co. v. Bogert, 24 N.J.Super. 1, 93 A.2d 402 (App.Div.1952). However, as stated by Justice Heher in In re Fox's Estate, 4 N.J. 587, at page 594, 73 A.2d 575, at page 578 (1950):
'It is not of the judicial province to reconstruct the will and to provide for a contingency unforeseen by the testator. * * *'
And in the case of Ricardo v. Kelly, 134 N.J.L. 540, at page 543, 48 A.2d 897, at page 900 (Sup.Ct.1946), this principle was given expression by the court when it stated:
* * *'
There is such a vast distinction between cash which...
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Oliverio's Will, In re
...the opinion that the two cases reported in foreign jurisdictions are properly distinguished from the instant one. In re Schmidt's Estate, 38 N.J.Super. 524, 119 A.2d 786 (1956) the New Jersey Appellate Court determined that money found in a safe deposit box was not included in a bequest of ......
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Renegade Holdings, Inc. v. Phelps (In re Renegade Holdings, Inc.)
...The distinction between a bank account and a safe deposit box was succinctly stated by the court in In re Estate of Schmidt. 119 A.2d 786 (N.J. Super. Ct. Prob. Div. 1956). In that case, a testator bequeathed to his wife "the remainder of any cash in any bank account. . . ." In addition to ......