Swetland v. Swetland

• Decision Date: 25 October 1926
• Citation: 134 A. 822
• Parties: SWETLAND et al. v. SWETLAND et al.
• Court: New Jersey Court of Chancery

134 A. 822

SWETLAND et al.

v. SWETLAND et al.

Court of Chancery of New Jersey.

Oct. 25, 1926.

(Syllabus by the Court.)

Suit by Maurice J. Swetland and others, executors and administrators of the will of Horace M. Swetland, deceased, against Hattie Swetland and others, for construction of the will and instruction with reference to duties thereunder. Will construed.

Whiting & Moore, of Newark, and George W. Elkins, of New York City, for complainants.

McCarter & English, of Newark, and Arnold L. Davis, of New York City, for defendants Swetland, Stevens, and Kane.

Pitney, Hardin & Skinner, of Newark, and Clare Peter Johnson, of New York City, for defendants Johnson.

BERRY, Vice Chancellor. This bill is filed by the executors and trustees of the will of Horace M. Swetland, and seeks the construction of the will and instructions with reference to the duties of complainants thereunder. The testator died June 15, 1024. His will is dated January 12, 1922. For a complete understanding of the issues raised in this suit, it is necessary to quote the will in full. The following is a copy of the will, and for convenience of reference I have arbitrarily given the several paragraphs marginal numbers:

(1) "I, Horace M. Swetland, of the township of Verona, county of Essex, state of New Jersey, do hereby make, publish and declare this my last will and testament, in manner and form following:

(2) "First. I direct that all my just debts and funeral expenses be paid, except business obligations which may be carried at the discretion of my executors.

(3) "Second. I direct that all transfer, inheritance or succession taxes upon the foregoing devises and bequests shall be paid by my executors from my residuary estate.

(4) "Third. All of my estate, of which I may die seized or possessed, or to which I may be entitled at the time of my decease, I give, devise and bequeath to my executors, hereinafter named, in trust nevertheless, and for the following uses and purposes, and subject to the terms, conditions, powers and agreements as herein provided:

(5) "(A) To have and to hold and possess the same, to collect the rents, issues and income and the profits thereof, and to pay from the net income therefrom the following amounts:

(6) "1. To deliver and pay over to my half-sister, Hattie Swetland, if she shall survive me, the sum of twelve hundred dollars ($1,200) each year, during her life, in semi-annual installments of six hundred dollars ($600) each, and I direct my executors to make the first of such payments immediately after my decease.

(7) "It is my will, and I direct my trustees in the exercise of their absolute discretion, to increase as they may consider necessary, the amount to be paid to said Hattie Swetland, if any misfortune should befall her whereby her necessities should require the payment of a larger sum.

(8) "It is my will, and I direct my trustees upon the death of my wife, or if she should have predeceased me and I am survived by said Hattie Swetland, to immediately distribute the principal of the trust hereby created and as herein provided, except such amount of cash or assets as they shall set aside and retain as sufficient to insure the return of an annual net income of not less than twelve hundred dollars ($1,200) to be used and applied as above provided for the benefit of said Hattie Swetland.

(9) "It is my will, and I direct that if my trustees shall set aside and retain assets sufficient for the purpose specified in the next preceding paragraph hereof, and in the event the necessities of said Hattie Swetland should require the payment of a greater annual amount than therein provided, that they shall have the power and authority to pay over or apply any part of, and if necessary all of the principal so set aside for the aforesaid purposes for her comfort, care and maintenance, as in the exercise of their absolute discretion my trustees may consider necessary or advisable.

(10) "Upon the decease of said Hattie Swetland, and in the event that a separate fund shall have been established for her benefit as herein provided, I direct my trustees to distribute the principal of said fund or the remainder thereof and all additions thereto, if any, in the same manner as hereinafter provided for the final distribution of my residuary estate.

(11) "2. To deliver and pay over to my wife, Clara A. Swetland, the sum of fifteen thousand dollars ($15,000) per year during her life, in equal monthly payments, the first of which shall be paid by my executors immediately after my decease.

(12) "The provisions herein contained for the benefit of my wife, I hereby declare are intended to be and are so given to her in full satisfaction and in lieu of and for her dower and thirds, which she may or can in any wise claim or demand out of my estate.

(13) "It is my will, and I direct my trustees in the exercise of their absolute discretion to increase, as they may consider necessary or advisable, the amount to be annually paid to my said wife, if any misfortune should befall her whereby it should become necessary to provide for her competent and comfortable support and maintenance.

(14) "It is my will, and I direct that my trustees shall permit my said wife to have the use of, and to occupy free of rent or other charges, except as herein specifically otherwise provided, my dwelling house and the grounds attached thereto situated in the township of Verona, town of Montclair, county of Essex, state of New Jersey, and all the furniture and articles of use and ornament of every kind and nature therein contained at the time of my decease, together with all personal property and equipment located upon said premises during the term of her life.

(15) "It is my will, and I direct my trustees to pay and discharge, during the life of my wife, all taxes, assessments, insurance charges and charges of every kind and nature except as herein otherwise specifically provided, which may be imposed upon any of the lands and premises used and occupied by my wife, as herein provided, from the income received by them from the principal of the trust herein created, except that my said wife shall personally pay for all repairs to and improvements upon the said property while used and occupied by her, and that in the event of her failure so to do, and if it shall become necessary for the proper maintenance and protection of said property, and premises, I authorize and empower my said trustees to make such repairs or improvements thereon as they in the exercise of their absolute discretion may consider proper and necessary, and to charge the cost thereof to the trust account.

(16) "Upon the death of my wife, Clara A. Swetland, if she shall have survived me, I direct my trustees, subject to the provisions herein contained for the benefit of my half-sister, Hattie Swetland, to distribute the remainder of the principal of the trust herein created, and upon the death of the said Hattie Swetland, if she shall have survived me, to distribute the principal of the trust held for her benefit, by dividing the principal of said trust or trusts, as the case may be equally among my daughters, Mrs. Velma I. Stevens, Mrs. Ruth D. Kane, and Dorothy A. Johnson, and my son, Maurice J. Swetland, as trustee, or his successor trustee. The bequest to Maurice J. Swetland, trustee, is made under the trust agreement heretofore mentioned and created by me under date of July 14, 1917, for the purpose herein provided.

(17) "In the event that any of my said daughters shall predecease me or my wife, Clara A. Swetland, leaving lawful issue her and me surviving, then and in that event such issue shall take per stirpes and not per capita, the share its parent would have taken under this will had such parent survived me and my wife, Clara A. Swetland; in the event that any of my said daughters shall have predeceased me or my wife, Clara A. Swetland, leaving no lawful issue her or me surviving, the share such child of mine would have received under the provisions hereof shall be equally distributed among my surviving daughters or their issue, as herein provided, and Maurice J. Swetland, as trustee, or his successor trustee, under the trust agreement heretofore mentioned and created by me under date of July 14, 1917, for the purpose therein provided.

(18) "B. Except as hereinbefore otherwise provided, I direct and empower my trustees in the exercise of their absolute discretion, to sell either at public or private sale, and at such times and in such manner and upon such terms and conditions as may be deemed most advantageous and for the best interest of my estate, the whole or any part of the real estate of which I may die seized or possessed, or any interest therein, and to execute and deliver any and all conveyances, deeds or other instruments that may be necessary or proper to transfer said property or to carry out the intention of this provision.

(19) "It is my will, and I hereby expressly direct that my executors and trustees in their absolute and uncontrolled discretion, may retain for such period as they shall see fit, any investments of any nature or kind made by me in my lifetime, and that no liability shall attach to them by reason of any loss occasioned to my estate by reason of so doing. It is also my will, and I hereby direct that the trustees of the trusts created by this will may accept from my said executors and may retain for such period as they deem wise, any securities or property in which I may have invested my estate in my lifetime, even if such securities and investments are not of a character in which fiduciaries are authorized to invest trust funds, and that no liability shall attach to such trustees by reason of any loss occasioned by such acceptance or retention.

(20) "I also expressly authorize and empower the trustees of the trusts hereby created in their absolute discretion to invest and reinvest the properties which may come into their hands...