Whitehead v. McCoy

• Decision Date: 12 January 1943
• Docket Number: 139/126.
• Citation: 133 N.J.Eq. 1,29 A.2d 729
• Parties: WHITEHEAD v. McCOY et al.
• Court: New Jersey Court of Chancery

29 A.2d 729

133 N.J.Eq. 1

WHITEHEAD

v. McCOY et al.

139/126.

Court of Chancery of New Jersey.

Jan. 12, 1943.

Syllabus by the Court.

1. A devise of lands or bequest of chattels, by words which clearly would give the absolute estate, will be construed into a devise or bequest for life only, if the will contains words giving it to another upon the death of the first taker.

2. Where testator by the second paragraph of his will gave to his four children what would otherwise be an absolute gift were it not for the limitation placed upon such gift by the language immediately following such gift, namely, "subject to the provisions hereinafter named", and by the twelfth paragraph testator placed a similar limitation upon the gift of certain stock wherein he provided that at the time of distribution $10,000 is to be retained by his executors out of the shares of two of the children and held in trust, the income therefrom to be paid to each and upon the death of either the principal to be paid to the heirs and assigns of said deceased child, held, that such children took a life estate only in the fund, and the gift of the remainder to the "heirs and assigns" is a gift to life tenant's next to kin.

Suit by Vernor Whitehead against Eleanor Butler McCoy and others seeking construction of the will of John Whitehead, deceased.

Decree in accordance with opinion.

John P. Kirkpatrick, of New Brunswick, for complainant.

John O. Muller, of Irvington, for defendant Eleanor Butler McCoy.

Whittemore, McLean & Hand and Douglas C. Baker, all of Elizabeth, for defendants Harold Ogden and National State Bank of Elizabeth.

Hicks, Kuhlthau, Thompson & Deshler, of New Brunswick, for defendant Florice B. Stonehouse.

STEIN, Vice Chancellor.

Complainant seeks construction of the will of John Whitehead, who died August 2, 1913, the pertinent parts of which are as follows:

"Second: (2) I give, devise and bequeath, to my beloved children, Jennie M. Ogden, Elvin Whitehead, Vernie Whitehead, and Estelle Butler, their heirs and assigns, all my estate real, personal and mixed of every kind and character and wherever situate, to be equally divided by my executors hereinafter named among or between my four children, their heirs and assigns, subject to the provisions hereinafter named."

"Twelfth: (12) I hereby order and direct that all my stock in the Whitehead Brothers (Stock) Company and all other interests I may have, in said Company be held in trust by my executors, for the term of Five years, from the date of my decease, the income therefrom, to be paid annually, to my four children, Jennie M. Ogden, Elvin Whitehead, Vernie Whitehead and Estelle Butler, their heirs and assigns, equally share and share alike. At the end of said five years, the Principal thereof is to be divided equally between my said children Jennie M. Ogden, Elvin Whitehead, Vernie Whitehead and Estelle Butler, their heirs and assigns forever, Share and Share alike, except as hereinafter provided. If at any time during said Five years, My executors deem it advisable to sell and dispose of said stock and interest, they are hereby authorized to do so, and in case of such sale, shall immediately pay the principal thereof to my said four children their heirs and assigns except as hereinafter provided. Their failure, however, to sell same, during said term of Five...