Stone's Estate, In re

• Decision Date: 05 August 1952
• Docket Number: No. P--7177,P--7177
• Citation: 21 N.J.Super. 117,91 A.2d 1
• Parties: In re STONE'S ESTATE.
• Court: New Jersey Superior Court

Page 117

21 N.J.Super. 117

91 A.2d 1

In re STONE'S ESTATE.

No. P--7177.

Superior Court of New Jersey, Chancery Division.

Aug. 5, 1952.

Jay B. Tomlinson, Bordentown, atty. for plaintiffs.

Albert B. Kahn, Trenton, guardian ad litem for four infant parties in interest and attorney for adult beneficiaries.

Charles Quinn, Trenton, guardian ad litem for one infant party in interest and attorney for one adult beneficiary.

EWART, J.S.C.

John W. Stone died July 24, 1944 in his 81st year, a resident of Trenton, N.J., leaving hom surviving his widow, Emma J. Stone; seven children, viz: Susanna Robbins, Berdie Weeks, Marie Beck, John W. Stone, Jr., Lee J. Stone, Benjamin F. Stone, and Emma J. Stockton and a grandson, John W. Stone, son of the testator's deceased son, Gilbert S. Stone. Also additional grandchildren hereinafter mentioned whose parents are still living.

His will bearing date February 19, 1944 was duly probated in the Prerogative Court and letters testamentary thereon were issued August 4, 1944 to Emma J. Stockton and Benjamin F. Stone, two of the testator's children, as executors.

By his will the testator directs payment of his debts and funeral expenses, bequeaths the sum of $8,000 to his widow, and bequeaths and devises all of the rest, residue and remainder of his estate, real and personal, to four of his children in trust as set forth in the following portions of his will:

'Third: All the rest, residue and remainder of my estate, of whatsoever the same may consist and wheresoever situate, including all property over which I may have a general power of appointment at the time of my death, I give, devise and bequeath to my daughters, Mrs. Marie Beck and Mrs. Emma J. Stockton, and my sons, Benjamin F. Stone and Lee J. Stone, as Trustees, to have and to hold upon the following terms, conditions and trusts, that is to say:

'(A) From and after one year from the date of my death to pay the net income from my estate to my wife, Emma J. Stone, for and during the term of her natural life, provided however, that if the net income exceeds the sum of Eight Thousand ($8,000.00) Dollars in any one year, then in that year to pay only the sum of eight thousand ($8,000.00) dollars to her from such income, and to add any excess of such income to the principal of my estate.

'(B) From and after the death of my wife, Emma J. Stone, to pay the sum of Three Hundred ($300.00) Dollars annually to my sister, Kate Stone, for and during the term of her natural life.

'(C) From and after the death of my wife, Emma J. Stone, to pay all the balance of the net income from my estate in equal shares to my children Susanna Robbins, Berdie Weeks, Marie Beck, John W. Stone, Jr., Lee J. Stone, Benjamin F. Stone, Emma J. Stockton and my grandson, John W. Stone, son of my deceased son, Gilbert S. Stone, for and during their respective lives.

'(D) Upon the death of any of my said children or of my grandson, the said John W. Stone, I direct that their respective shares from which they have been receiving the income, or in the event that any of them shall predecease my wife, Emma J. Stone or myself, then the parent's share, shall be paid to his or her issue per stirpes and not per capita. I direct that my trustees and any successors thereto shall continue to hold the share of any principal of my estate that might fall due to any of my grandchildren until he or she shall attain the age of thirty years. The income from such share however shall be paid to such child in the meantime and this provision as to the payment of income and principal shall apply to my grandson, John W. Stone, the son of my deceased son, Gilbert S. Stone. Should any of my children or my said grandson, John W. Stone, die without leaving issue, I then direct that my trustees distribute the share to which such child or grandchild is entitled equally among my surviving children and my said grandson and the children of any deceased child who shall take in equal portions the share which their parent would have taken if living.'

The executors have filed three accountings, all duly approved by the court. The third and last accounting covers a period from November 1, 1948 to December 31, 1951 and was approved and allowed by this court on June 6, 1952. And a supplemental accounting covering the period from January 1, 1952 to June 10, 1952 was approved and allowed by this court on June 27, 1952.

The executors' third accounting showed on hand a balance of assets, including principal and interest, of the total value for accounting purposes of $648,752.57; gross income collected during the period covered by the third accounting of $257,114.33; increases realized on sale or redemption of securities and profits on sales of real estate aggregating $61,176.94; and the supplemental accounting covering the period from January 1, 1952 to June 10, 1952 showed additional items of gross income collected aggregating the further sum of $34,538.66 and further profits on sale or redemption of securities and items of real estate aggregating $11,405.13.

The complaint annexed to the third and final account of the executors, in addition to asking the approval of the account and the allowance of executors' commissions and attorney's fees, seeks further relief under the following allegations:

'The plaintiffs further allege that:

'(1) The last Will and Testament of John W. Stone, dated February 19, 1944 provided among other things in Paragraph 3(C)

"From and after the death of my wife, Emma J. Stone, to pay all the balance of the net income from my estate in equal shares to my children Susanna Robbins, berdie Weeks, Marie Beck, John W Stone, Jr., Lee J. Stone, Benjamin F. Stone, Emma J. Stockton and my grandson, John W. Stone, son of my deceased son, Gilbert S. Stone, for and during their respective lives.'

'(2) The said Emma J. Stone, widow of John W. Stone, is still living and she has stated to the plaintiffs that it is her desire to accelerate the trust by releasing her interest in the said estate upon receiving assurances from the individual legatees of proper compensation. However, inasmuch as the said will provides by Paragraph 3(D) as follows:

"Upon the death of any of my said children or of my grandson, the said John W. Stone, I direct that their respective shares from which they have been receiving the income, or in the event that any of them shall predecease my wife, Emma J. Stone, or myself, then the parent's share shall be paid to his or her issue per stirpes and not per capita. I direct that my trustees and any successors thereto shall continue to hold the share of any principal of my estate that might fall due to any of my grandchildren until he or she shall attain the age of thirty years. The income from such share however shall be paid to such child in the meantime and this provision as to the payment of income and principal shall apply to my grandson, John W. Stone, the son of my deceased son, Gilbert S. Stone. Should any of my children or my said grandson, John W. Stone, die without leaving issue, I then direct that my trustees distribute the share to which such child or grandchild is entitled equally among my surviving children and my said grandson and the children of any deceased child who shall take in equal portions the share which their parent would have taken if living;' and

'Since it is unknown at the present time who the ultimate beneficiaries of the said estate may be, Emma J. Stone would be placed in peril should she execute a release and should the Court decide that because of said provision in the last Will and Testament of John W. Stone acceleration of payments could not be made by the executors and trustees appointed in the said will.

'No action is pending in any Court involving the matters aforesaid.

'Wherefore plaintiffs pray that this Court may construe the terms of the said will and declare whether or not the trust could be accelerated upon the giving of a release by the said Emma J. Stone.'

By a judgment entered June 27, 1952 the supplemental accounting of the executors was allowed and approved; commissions on income and corpus were allowed the executors; a counsel fee of $10,000 was allowed Mr. Tomlinson as attorney for the executors; a fee of $1,250 was allowed Albert B. Kahn, Esquire, guardian ad litem for infant parties in interest; a fee of $1,250 was allowed Charles Quinn, Esquire, as guardian ad litem for an infant party in interest and the executors were ordered to pay over the balance of the estate in their hands to the four trustees named in the will, who had qualified as such and to whom letters of trusteeship were issued April 25, 1952, said judgment of distribution to the trustees being in accordance with a petition therefor annexed to the supplemental accounting above referred to.

At that time the court reserved decision on the following questions, viz.: (1) the application set forth in the complaint annexed to the third and final account for a declaratory judgment respecting the proposal to have the widow of testator release her right to income for life under testator's will and to accelerate the payment of income to testator's children, and (2) the application of Mr. Kahn for a counsel fee of $3,250 to be paid by the estate and the application of Mr. Quinn for a counsel fee of $6,500 to be paid by the estate. Both Mr. Kahn as guardian ad litem for four infant parties in interest and Mr. Quinn as guardian ad litem for one infant party in interest filed reports in writing with the court on or prior to June 6, 1952, on which date the third and final accounting was approved and allowed, and both filed supplemental reports as guardians ad litem in connection with the supplemental accounting covering the period from January 1, 1952 to June 10, 1952, which supplemental account was approved and allowed June 27, 1952. Mr. Kahn files an affidavit of services rendered by him covering not only his services as guardian ad litem for four infant ...