Tourigian v. Tourigian

• Decision Date: 16 December 1953
• Docket Number: No. C--2363,C--2363
• Citation: 29 N.J.Super. 94,101 A.2d 611
• Parties: TOURIGIAN et al. v. TOURIGIAN et al. . Chancery Division
• Court: New Jersey Superior Court

Page 94

29 N.J.Super. 94

101 A.2d 611

TOURIGIAN et al. v. TOURIGIAN et al.

No. C--2363.

Superior Court of New Jersey Chancery Division.

Dec. 16, 1953.

Daniel De Brier, Atlantic City, for plaintiffs.

George Warren, Trenton, guardian ad litem, pro se.

HANEMAN, J.S.C.

Plaintiffs herein seek the construction of the will of Mesrop Tourigian, who died December 5, 1952, leaving a last will and testament dated January 10, 1947, which was duly admitted to probate in the Atlantic County Surrogate's Court on December 16, 1952.

At the time of his death he left him surviving a widow, Agnes, and seven children. Four of said children, all adults, were born of a prior marriage, and there of the children, all minors, were born of his marriage to Agnes.

The question herein raised is as follows: Does paragraph Third of testator's will impose a trust upon the three-fifths share of his estate therein devised and bequeathed?

The pertinent sections of the will are as follows:

'Second: All the rest, residue and remainder of my estate, real, personal and mixed, of whatsoever nature and wheresoever situate, I give, devise and bequeath as follows: Three-fifths (3/5) to my beloved wife, Agnes Mangigian Tourigian. The remaining two-fifths (2/5) to be divided among all my children, in equal shares between them.

'The word or words 'children' or 'all my children,' as used in this Will, shall apply to the children born of my present marriage and also the children born of any previous marriage.

'Third: It is my Desire and I hereby Direct my wife, Agnes Mangigian Tourigian, to provide a suitable and adequate home, support, maintenance, care and education for our minor children out of her three-fifths (3/5) share of my estate. My wife shall maintain for herself and my minor children, a home, in such circumstances and with such environment as shall be compatible with their present status in life and manner of living. Should my wife's share be insufficient to provide and care for my minor children, as stated above, then and in that event, my wife is herein authorized to obtain whatever moneys may be necessary for this purpose from my minor children's share of my estate, provided she shall obtain, on application, the approval of a Court of competent jurisdiction. My wife shall continue to provide for my minor children until each of them shall reach the age of twenty-one (21) years, or, unless of course, they shall die prior to that time; or shall marry; or shall establish their own home or household elsewhere.

'Should my beloved wife die while carrying out the duties imposed upon her under this paragraph 'Third,' then and in that event, I direct that my son, Harry Tourigian, shall carry out these duties, as substituted guardian.

'Sixth: I nominate, constitute and appoint my beloved wife, Agnes Mangigian Tourigian, the Guardian of my infant children during their respective minorities, as stated in 'Third' above, to serve without bond in this State or in any other State. Should she predecease me, or die during the minority of any of our children, then I direct that my beloved son, Harry Tourigian, be appointed as Guardian of my minor children, in her place and stead, to serve without bond in this State or in any other State.' (Italics supplied).

Plaintiffs argue that it was not the testator's intent to impress a trust on a three-fifths share of his estate devised and dequeathed under paragraph Second to his widow.

If a contrary intent is to be found, it must be by sections of the will other than paragraph Second, and particularly by virtue of paragraph Third.

Plaintiffs rationalize, first, that the use of the word 'desire' in paragraph Third is a precatory and not a mandatory expression, and that in the light of the other provisions of the will, there is insufficient evidence to give rise to an intent to create a trust. They completely ignore the four words which directly succeed the word 'desire,' i.e., 'and I hereby direct.' It must be conceded that did the word 'desire' stand alone and unqualified, the question of whether a moral or legal obligation resulted would have been pertinent. We have here, however, an express mandatory direction, and those cases construing the effect of precatory words are inapplicable.

Plaintiffs further argue that the intention gathered from the balance of said will demonstrates that it was not the testator's intent to impress a trust under paragraph Third, and that the failure of the testator to use the word 'trust' and to appoint a named trustee, and the use of the words 'substituted guardian' in paragraph Third, and 'Guardian' in paragraph Sixth, mitigate against the construction sought by the guardian Ad litem of the infant defendants.

It is academic that on the question of a construction of a will the court must give effect to the intent of the testator as ascertained from a consideration of the entire will. In re Armour's Estate, 11 N.J. 257, 94 A.2d 286 (1953); Dickerson v. Dickerson, 4 N.J.Super. 237, 66 A.2d 740 (App.Div.1949).

In attempting to ascertain this intent, if the language of the will presents a solid foundation upon which the court can reasonably rely, it will be construed in favor of a just and reasonable disposition; and the predominant idea of the testator's mind, if apparent, will be heeded as against all doubtful and conflicting provisions which might of themselves defeat it. Gluckman v. Roberson, 116 N.J.Eq. 531, 174 A. 488 (E. & A.1934). In the absence of an expressed intention to the contrary in construing a will, favor will be accorded to those beneficiaries who appear to be the natural or special objects of testator's bounty. It will not be presumed that the testator intended to discriminate between the natural objects of his bounty and a construction affecting equality, and the natural objects of the testator's bounty will be favored. Testamentary provisions for support are favored by law, and provisions for the support and education of dependent beneficiaries are to be liberally construed in favor of such beneficiaries. In construing an ambiguous will, in the absence of an expressed intention to the contrary, the court will favor the testator's children and a provision for the support of the testator's children should receive the most favorable construction to accomplish the purpose intended. Byrne v. Byrne, 123 N.J.Eq. 6, 195 A. 848 (Ch.1938), affirmed 124 N.J.Eq. 273, 1 A.2d 464 (E. & A.1938).

In Hudson Trust Co. v. de Malignon, 140 N.J.Eq. 167, 53 A.2d 337, 339 (E. & A.1947), the court said:

'The predominant idea in the testator's mind 'if apparent, is heeded as against all doubtful and conflicting provisions which might of themselves defeat it.' Johnson v. Haldane, 95 N.J.Eq. 404, 124 A. 63, 64; Peer v. Jenkins, 102 N.J.Eq. 235, 140 A. 413; Fink v. Harder, 111 N.J.Eq. 439, 162 A. 614; Gluckman v. Roberson, 115 N.J.Eq. 522, 171 A. 674; affirmed in 116 N.J.Eq. 531, 174 A. 488; Camden Safe Deposit (& Trust) Co. v. Scott, 121 N.J.Eq. 366, 189 A. 653, 110 A.L.R. 1442. While the decedent's will was not as carefully drawn as it might have been, nevertheless 'the plain intent of the testator as disclosed by the language of his will, unless contrary to law, must govern.' Second National (Bank & Trust) Co. of Red Bank v. Borden, 113 N.J.Eq. 378, at pages 380 and 381, 167 A. 224, 225; Bottomley v. Bottomley, 134 N.J.Eq. 279, at page 290, 35 A.2d 475.'

See also Inman v. Inman, 125 N.J.Eq. 160, 4 A.2d 1 (E. & A.1938).

It is true that no express words directing the creation of a trust or naming a trustee are to be found in the will. However, as the court said in Scarborough v. Scarborough, 134 N.J.Eq. 201, 34 A.2d 791, 795 (Ch.1943).

'Nevertheless, a testamentary trust may be found by implication where the intention of the testator to set up a trust is manifest, or testator's obvious purpose cannot be executed except through such an instrumentality, or the executors are given duties to be discharged beyond their ordinary functions as executors.'

See also Appleby v. Appleby, 139 N.J.Eq. 73, 50 A.2d 885 (Ch.1946); In re Thurston, 104 N.J.Eq. 395, 145 A. 110 (Prerog.Ct.1929).

The directions to the widow were not mere indications of motive, they were directions evincing a mandatory purpose for which the share of testator's estate was devised and bequeathed to his widow.

In Coffin v. Watson, 78 N.J.Eq. 307, 79 A.2d 275, 277 (Ch.1911), affirmed 79 N.J.Eq. 643, 83 A. 1118 (E. & A.1912), the court said as follows:

'Upon the question whether provisions for maintenance of children are trusts imposed on a parent where no trusts are declared in express terms, the general rule is that, if the language is sufficient to clearly express the intention that it should be held in trust for maintenance, the court will enforce the trust. 2 Pom.Eq. Juris, § 1012,...