Schmieder v. Meyer

• Decision Date: 19 January 1925
• Docket Number: No. 104.,104.
• Citation: 127 A. 162
• Parties: SCHMIEDER et al. v. MEYER et al.
• Court: New Jersey Supreme Court

127 A. 162

SCHMIEDER et al.

v. MEYER et al.

No. 104.

Court of Errors and Appeals of New Jersey.

Jan. 19, 1925.

(Syllabus by the Court.)

Appeal from Court of Chancery.

Suit by Louis Schmieder and others against Clarence D. Meyer, as trustee, and others. From the decree rendered by the Court of Chancery (125 A. 140), defendants appeal. Reversed.

Clarence D. Meyer, of Elizabeth, for appellants.

Stamler, Stamler & Koestler, of Elizabeth, for respondents.

KAYS, J. This is an appeal from a decree of the Court of Chancery, decreeing the distribution of the trust funds created under the last will and testament of Frank Schmieder, and directing the defendants, as executors and trustees under his will, to transfer and convey the estate of the testator to the defendants, Louis Schmieder, Frank J. Schmieder, Mary Schmieder Hand, and Emil Henry Schmieder. Frank Schmieder died on September 26, 1922, leaving a last will and testament and two codicils thereto. The will of the testator was dated February 3, 1917, and apparently, after the making of said will, the said Frank Schmiedder married a second time, and on the 17th day of July, 1919, he made a codicil to the will above mentioned, making his said second wife, Ella Schmieder, a beneficiary thereunder. The testator made another codicil on April 27, 1922.

The testator, in and by his will and codicils, named the defendants, Clarence D. Meyer and John G. Hall, executors and trustees. After making several specific bequests, the will and codicils provide as follows:

"All the rest, residue and remainder of my estate, real, personal and mixed, I give, devise and bequeath unto my executors hereinafter named, but upon trust for the following uses and trusts."

The will and codicils then provide for the collection of the income and the investment of the principal by the trustees, after which it contains the following language:

"The net income therefrom at least once in each year shall be divided by said executors and trustees in the following manner: One-third thereof unto my wife, Ella Schmieder, so long as she lives and remains my widow; and the remainder or two-thirds thereof shall be divided among my children, Louis Schmieder, Frank J. Schmieder, Mary Schmieder Hand, and Emil Henry Schmieder.

"After the death of my said wife my said estate shall be divided equally between my said children, share and share alike, and if any child dies leaving lawful issue, such grandchild or children shall receive the share or portion of the parent.

"The share of Emil Henry Schmieder shall be retained by my executors or trustees until my said son Emil attains the age of 40 years, or as soon as my executors deem him capable of managing his own affairs; but he may receive the income therefrom regularly at least once in each year."

On or about February 26, 1924, the widow, Ella Schmieder, and the complainants, children of the testator, namely, Louis Schmieder, Frank J. Schmieder, Mary Schmieder Hand, and Emil Henry Schmieder, entered into an agreement in writing, by the terms of which the widow was to be paid the sum of $20,000 in full settlement of her rights, claims, legacies, and devises under the testator's will, including her dower and rights of dower. And it was further provided, in and by said agreement, that a suit should be instituted in the Court of Chancery for the purpose of obtaining a decree whereby the trust created in and by the testator's will had ceased and terminated, and requiring the executors and trustees to convey all the property bequeathed or devised to the children and widow, except some real and personal property therein specifically mentioned, to the children named in his will. A bill was filed in accordance with this agreement by the complainants, and the executors opposed the making of the decree as prayed for under the agreement. There were several grandchildren of the testator in existence at the time of the making of the agreement and the institution of this suit, some of whom were minors, and none of whom were made parties hereto.

The ground of the defense is, it was the testator's purpose that no distribution should be made...