White v. White

• Decision Date: 19 March 1969
• Docket Number: No. C--3087,C--3087
• Citation: 251 A.2d 470,105 N.J.Super. 184
• Parties: Eustace WHITE and Arnold Tanner, Co-Executors Under the Will of Thomas E. Catchpole, Deceased, Plaintiffs, v. James WHITE, Roger White and Margaret W. Tanner, Defendants.
• Court: New Jersey Superior Court

Page 184

105 N.J.Super. 184

251 A.2d 470

Eustace WHITE and Arnold Tanner, Co-Executors Under the Will

of Thomas E. Catchpole, Deceased, Plaintiffs, v. James WHITE, Roger White and Margaret W. Tanner, Defendants.

No. C--3087.

Superior Court of New Jersey, Chancery Division.

March 19, 1969.

Arnold Tanner, Freehold, for plaintiffs.

Daniel J. O'Hern, Red Bank, for defendant James White (Abramoff, Apy & O'Hern, Red Bank, attorneys).

William R. Blair, Jr., Red Bank, for defendants, Roger White and Margaret W. Tanner (Parsons, Canzona, Blair & Warren, Red Bank, attorneys).

LANE, J.S.C.

This action was instituted by the executors under the will of Thomas E. Catchpole, deceased, to obtain a construction of his will executed November 25, 1953. Defendant James White, a grandnephew of decedent, is the devisee of a house and lot under paragraph Third. Defendants Roger White and Margaret Tanner are given an interest in the proceeds of a sale of the real property devised under paragraph Third. In addition, Roger White benefits under the residuary clause. These three persons are brothers and sister. The matter is before the court on final hearing.

Paragraph Third of the will provides as follows:

'I give, devise and bequeath to James White, son of my nephew, Eustace White, my house together with my furniture, except such antiques, linen and glassware as shall be selected and taken by Margaret Tanner, as provided hereinafter, located at 164 South Street, in the Borough of Eatontown, County of Monmouth and State of New Jersey. In the event my said grandnephew, James White shall sell said house within fifteen years after the date of my death, I direct that he shall give my grandniece, Margaret Tanner, and grand-nephew, Rodger (sic) White, notice in writing of his intention so to do, and I further direct that he shall divide the proceeds from said sale equally between himself, said Margaret Tanner and said Rodger (sic) White, their heirs and assigns, per capita and not per stirpes.

(a) In the event said Rodger (sic) White has not attained the age of twenty-five (25) years at the time of the sale, said share so bequeathed to him shall be paid to my trustees for distribution to him in accordance with the provisions of the trust hereinafter provided for him.'

The house referred to in that paragraph had been occupied by decedent as his residence for a number of years. The White family (parents of James, Roger and Margaret) lived one house away from the property. Mrs. Catchpole died in April 1953. There had been a close personal relationship between decedent and James White and his wife. James White acted as a son towards decedent. He and his wife did the shopping for him; they arranged for doctors; they were available whenever decedent needed help.

On January 12, 1968 a fire partially destroyed the premises. In that fire decedent received injuries from which he died on January 26, 1968. During the interval between the date of the fire and the date of death, decedent did not have the capacity to change his will. At the time of the fire there was a policy of fire insurance covering the premises. A claim was made under the policy which was adjusted after Catchpole's death for $7,738.81, out of which $92.46 was spent for the protection of the premises. James White claims the insurance proceeds under paragraph Third. Roger White claims that the proceeds of the insurance policy constitute personalty, an entirely different asset than the house, and therefore should pass under the residuary clause.

Since the fire James White has repaired the house, incurring obligations in the neighborhood of $10,000 as well as contributing a substantial amount of his own labor.

Roger White relies primarily upon New York cases and particularly upon In re Wright's Will, 7 N.Y.2d 365, 197 N.Y.S.2d 711, 165 N.E.2d 561 (Ct.App.1960). That case held that where personal property had been lost prior to testator's death there was an ademption so that the legatee was not entitled to the insurance proceeds paid to the estate on account of the loss. The basis of the decision was given by the court as follows:

'As indicated above, we deal with the problem of ademption. Although, in the early days of our law, ademption was based on the intention of the testator, today in New York, as well as in many other jurisdictions, intention has nothing to do with the matter; the bequest fails and the legatee takes nothing if the article specifically bequeathed has been given away, lost or destroyed during the testator's lifetime.' (197 N.Y.S.2d, at p. 713, 165 N.E.2d, at p. 562)

There is some support for the proposition that such was the law in this State at one time. Wyckoff v. Perrine's Ex'rs, 37 N.J.Eq. 118, 122 (Ch. 1883). Since that time, however, it has become clear that probable intent of the testator is the determining factor.

In In re Cooper's Estate, 95 N.J.Eq. 210, 123 A. 45, 30 A.L.R. 673 (E. & A.1923), Chief Justice Gummere quotes with approval a rule laid down by the Supreme Court of New Hampshire 'In the case of Morse v. Converse, (80 N.H. 24,) 113 Atl.Rep. 214, a decision of the supreme court of New Hampshire, Parsons, chief-justice, in discussing the doctrine of ademption, thus defines its scope: 'A legacy which is specific is adeemed when the particular thing given is wholly lost or destroyed; or is disposed of by the testator during his life; or is so altered by him in its form as to indicate a change of testamentary purpose on his part, and intentional partial revocation of his will.' This, in our opinion, is an accurate statement of the law of ademption and of its limitations.' (at p. 212, 123 A. at p. 46)

The rule of nonexistence of the subject of a specific legacy at the time of death evidencing ademption was clearly labeled by Vice-Chancellor Berry as 'but a rule of evidence.' In Donath v. Shaw, 132 N.J.Eq. 545, 29 A.2d 555 (Ch. 1942), the Vice-Chancellor stated:

'In construing a will we start with the proposition that the intention of the testator as gathered from the language used is controlling unless contrary to law, or to public policy, which is a part of every law. That rule should be a constant guide to the end and the intention, if apparent, should control all presumptions and assumptions. The rule that the nonexistence of the subject of a legacy evidences its ademption is but a rule of evidence, rebuttable by other evidence indicating that ademption was not intended.' (at p. 549, 29 A.2d at p. 558)

Testamentary intention is the criterion. In Arenofsky v. Arenofsky, 29 N.J.Super. 209, 102 A.2d 101 (App.Div.1954), Justice (then Judge) Francis stated:

'The test of ademption of a specific legacy in this State is whether the subject is 'lost, destroyed, or subsequently disposed of by testator, or so altered in form, by testator's subsequent acts, as to indicate a change of testamentary intent on his part. Conversely, if the subject, although somewhat changed in form, be not sufficiently changed to indicate change of testamentary intent, there is no ademption.' Chase National Bank v. Deichmiller, 107 N.J.Eq. 379, 382, 152 A. 697, 699 (Ch. 1930); In re Cooper's Estate, 95 N.J.Eq. 210, 123 A. 45, 30 A.L.R. 673 (E. & A. 1923); Annotation, 16 A.L.R.2d 1404.' (at p. 213, 102 A.2d at p. 103)

Accord, In re Hall's Estate, 60 N.J.Super. 597, 600, 160 A.2d 49 (App.Div.1960); Wyckoff v. Young Women's Christian Ass'n, 37 N.J.Super. 274, 278--279, 117 A.2d 162 (Ch.Div.1955).

Cases such as Righter v. First Reformed Church of Boonton, 17 N.J.Super. 407, 86 A.2d 305 (Ch.Div.1952), having to do with the execution of a contract for the sale of premises specifically devised, are not applicable for the obvious reason that in such cases the testator has evidenced his intention for a testamentary change.

Here the partial destruction of the house did not occur through any voluntary act of decedent but rather as the result of an unfortunate accident. The mere fact that this fire occurred evidences no change in decedent's intention that James White was to receive the house in which decedent was living. It does not show that he intended that White receive the house partially destroyed by fire. It would be completely contrary to decedent's probable intent, as evidenced by paragraph Third of his will, to hold that by the unfortunate circumstance of the fire the proceeds of the fire insurance policy would fall into the residue. Fidelity Union Trust Co. v. Robert, 36 N.J. 561, 178 A.2d 185 (1962); 5 N.J. Practice (Clapp, Wills and Administration) (3d ed. 1962), § 255, n. 10 (1968 Supp.). The purpose of the proceeds was obviously to repair the house in the event of partial destruction by fire.

Where a testator has specifically devised real property upon which a house stands, which house is destroyed or damaged by fire before death and the testator dies without regaining capacity to indicate a contrary intention, the proceeds of fire insurance on the house replace the house and pass under the devise. Lee v. Honea, 349 S.W.2d 110 (Tex.Civ.App.1961), application for writ of error refused, 163 Tex. 129, 352 S.W.2d 717 (Sup.Ct.1961); In re MacDonald's Estate, 133 Cal.App.2d 43, 283 P.2d 271 (D.Ct.App.1955). Cf. Millville Aerie, No. 1836, F.O. of E., v. Weatherby, 82 N.J.Eq. 455, 88 A. 847 (Ch.1913). The proceeds of the insurance policy are payable to James White under paragraph Third.

James White contends that the provision in paragraph Third requiring that he divide with Margaret Tanner and Roger White, his brother and sister, the proceeds of any sale made within 15 years after the decedent's death, is invalid as a restraint on alienation.

Paragraph Third gave James White an estate in fee simple. Galante v. Silverstein, 98 N.J.Eq. 52, 129 A. 865 (Ch. 1925). It then sought to have him give up two-thirds of the proceeds if the property is sold within 15 years.

In Magie v. German Evangelical Dutch Church, 13 N.J.Eq. 77 (Ch. 1860), affirmed o.b. 15 N.J.Eq. 500 (...