Strong v. Dann
| Decision Date | 27 July 1919 |
| Docket Number | No. 45-479.,45-479. |
| Citation | 108 A. 86 |
| Parties | STRONG v. DANN et al. |
| Court | New Jersey Court of Chancery |
(Syllabus by the Court.)
Suit by William L. Strong, executor of and under the will of Fannie M. Mathewes, deceased, against Emma C. Dann and others, for construction of the will and directions as to disposition of part of residuary estate in hands of executor as trustee. Prayer for construction of will granted and prayer as to direction for disposition denied.
Freeman Woodbridge, of New Brunswick, for complainant.
Ellis L. Pierson, of Trenton, for infant defendants.
WALKER, Ch. This suit was brought by the executor of the last will and testament of Fannie M. Mathewes, deceased, for construction of her will and directions as to the disposition of the one-half part of the residuary estate in the hands of the executor as trustee. On the death of Mrs. Mathewes' husband, which has taken place, the sum of $20,613.29 became distributable, one-half to the executor, individually, a nephew of the deceased, and to Emily L. Strong and Mary D. Strong, her nieces; the remaining one-half to be retained by the executor as trustee for the testatrix's other three nieces, Emma C. Dann, Edna M. Cook, and Mary S. Cook (now Reid), to pay over yearly the net income to the three nieces in equal portions, and in case of the death of one or more of them leaving lawful issue, then to pay over the share or shares held for them to such lawful issue, share and share alike per stirpes and not per capita, and in case such deceased niece or nieces should leave no lawful issue, then the trustee should retain the share or shares for the benefit of the surviving niece or nieces, and pay over the net income and profits of the said share or shares to the survivor or survivors; and in case at any time any one or more of the three nieces should desire advances to be made to them, or either of them, out of the share or shares in the hands of the trustee, and he should deem it proper to make such advance or advances, then he is fully authorized and empowered to do so at his discretion. Of the three nieces two are married, namely, Emma C. Dann and Mary S. Cook Reid. Mrs. Dann has two children, Margaret Dann and Edna May Dann, and Mrs. Reid has two children, Charles Harmon Reid and Henry Cook Reid. All the children are infant defendants to this suit. The clerk of the court has been appointed their guardian ad litem, and Ellis L. Pierson, Esq., appears for him and them as solicitor and counsel.
The bill avers that the adult nieces of the testatrix, Emma C. Dann, Mary S. Cook Reid, and Edna M. Cook, now desire the complainant, as trustee, to pay over to them their full shares of the estate bequeathed to them in trust as above stated; and the complainant avers that he deems it proper to make such advance or advances.
The prayer of the bill is that the court will construe the will of the late Mrs. Mathewes and direct the complainant as to his duties in the premises, and particularly whether or not he should pay over to the adult nieces each a one-third of the one-half of the balance remaining in his hands as trustee, under the clause of the will authorizing advances to be made.
The exact language of the will Invoked is:
"In case, at any time, any one or more of my said nieces, Emma C. Dann, Edna M. Cook and Mary S. Cook desire advances to be made to them, or either of them, out of and from the part or parts, share or shares in the hands of the said William L. Strong, and he shall deem it proper to make such advance or advances, then I fully authorize and empower him to make such advance or advances at his discretion."
My first Impression was that an advance of the whole of the share of any one of the nieces could not made to her at any one time, but that advances might only be made to her piecemeal, from time to time, as she might require an advance, and if the trustee should. In the exercise of sound discretion, deem it proper to make such advance. But upon reflection I have reached the opposite conclusion.
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...in the state of mind contemplated by the settlor. Conlin v. Murdock, Ch., 1945, 137 N.J.Eq. 12, 43 A.2d 218; compare Strong v. Dann, Ch., 1919, 90 N.J.Eq. 329, 108 A. 86. Thus, the mere fact that petitioner's husband may not be in a position to compel payments to himself would not necessari......
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