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Parker v. Fidelity Union Trust Co.

decided.: November 17, 1944.

EDMUND J. PARKER AND E. ELY PARKER, EXECUTORS AND TRUSTEES UNDER THE LAST WILL AND TESTAMENT OF ANNIE ELY PARKER, DECEASED, COMPLAINANTS,
v.
THE FIDELITY UNION TRUST COMPANY ET AL., DEFENDANTS.



Mr. William Hartshorne, and Mr. Arthur M. Goldberg, for complainants.

Messrs. Hood, Lafferty & Emerson (Mr. Sigurd A. Emerson) for defendant Fidelity Union Trust Company.

Messrs, Snyder, Roberts, & Pillsbury (Mr. John M. Pillsbury) for defendant County of Monmouth.

Mr. Andrew J. Conover for defendants Maplewood Cemetery Association; First Presbyterian Church of Freehold; First Church of Christ Scientist of Freehold.

Mr. Charles F. Dittmar for defendants Denna Clayton; the Woman's Club of Freehold.

Berry

Berry, V. C. Annie Ely Parker, late of Freehold, Monmouth County, New Jersey, died March 16, 1931, seized of real and personal property valued as of that date at $77,867.74. She left a will dated January 18, 1924, and a codicil thereto dated November 12, 1929. They were admitted to probate by the Surrogate of Monmouth County on April 7, 1931. The complainants Edmund J. Parker and E. Ely Parker are named as executors of said will. They are also referred to in the will as "executors or trustees" and there are several bequests of money "to my executors in trust." The executors duly qualified as such upon the probate of the will and have acted in that capacity, or as trustees, since that date, but no account of their administration of the estate has been filed.

By the Twelfth paragraph of her will, the testatrix provided as follows:

"Twelth(sic) -- I direct Fifty Thousand Dollars of my estate to be put in the Fidelity Trust Company of Newark New Jersey to be held in trust for Edmund J. and E. Ely Parker share and share alike. They to have the proceeds semi-annually. In case of the death of one the survivor to have the full benefit. Except in case there be legal issue, They to have the full amount of the Fathers Trust fund, also that of the Uncles should he leave no lawful issue -- When Child or Children reach the age of twenty-five years, the principal shall be paid to the Child or Children share and share alike. The remainder of my estate both real and personal I give my two sons share and share alike."

By a note of the margin of the third page of the codicil testatrix provided as follows:

"Bequest Twelth(sic) of Fifty Thousand Dollars -- In case there are no Child or Children The proceeds from the $50,000 to be used for Greenlawn Cemetery and The Monmouth Co. Tuberculosis Hospital, and the sum of One Hundred dollars, as a Xmas Gift annually to Annie P. Rue, for life."

The proofs show that Annie P. Rue is dead.

Pursuant to paragraph "Twelfth" of the will the executors have deposited with The Fidelity Union Trust Company the sum of $28,000.

On January 12, 1943, in proceedings in the Monmouth County Orphans' Court instituted by The Fidelity Union Trust Company claiming to be acting as trustees under decedent's will, the complainants as executors and trustees were cited to file an account.

On November 13, 1943, the executors filed their bill in this court against The Fidelity Union Trust Company and the County of Monmouth seeking a construction of the above quoted paragraphs of the will, restraint of the proceeding in the Monmouth County Orphans' Court, and a decree directing the Trust Company to account for the $28,000 deposited with it by the executors, and to transfer and turn over to complainants any investments and accumulated income in its hands resulting from that fund; adjudicating that the Trust Company is not a trustee under said will; that testatrix died intestate as to the $50,000 mentioned in paragraph "Twelfth" of the will; that said fund is the absolute property of complainants as next of kin of testatrix, and that County of Monmouth has no interest in said fund.

On the same day complainants filed a petition under the provisions of R. S. 2:26-71, subsection C, seeking a decree declaratory of the rights of the parties complainant and defendant to the bill of complaint above mentioned and restraint pendente lite against any proceedings in the Monmouth County Orphans' Court respecting the administration of decedent's estate. An order to show cause with preliminary restraint thereupon issued and on the return day thereof a further order was advised directing the complainants to amend their bill in order to bring before the court for construction the entire will of testatrix and to add as parties to this proceeding all persons, firms or corporations mentioned as legatees, devisees or otherwise in

said will, or who may have or claim an interest in decedent's estate. And all parties (including the complainants) were thereby restrained pendente lite from further proceedings in the Orphans' Court, the rights of all interested parties to file exceptions to any account of the complainants as executors or trustees being in the meantime expressly reserved.

Pursuant to that order an amended bill of complaint was thereafter filed and all parties appearing to have any interest under testatrix' will have been made parties thereto.

For a clear understanding of the issues involved in the construction of this will and codicil, a copy thereof is herein set forth as follows:

"IN THE NAME OF GOD, AMEN.

"I, Annie Ely Parker, of the Borough of Freehold and County of Monmouth, and State of New Jersey; do hereby make, and publish, and declare: the folling(sic) to be my last will and testament.

"FIRST. I direct that all my just debts and funeral expenses be paid by my Executors hereinafter named; as soon as can be conveniently done after my decease.

"SECOND. I give and bequeath to my Executors, the sum of Five Thousand Dollars in trust, that the said sum, shall be by the m invested in securities; which are legal investments, in New Jersey; and the income thereof, shall be paid to the proper persons, or Corporation; for the purpose of maintaining a free bed in the Monmouth County Tubercular Hospital; as a Memorial to my Daughter (now deceased) Marie Parker Palmer.

"THIRD. I give and bequeath -- my Executors the sum of Two Thousand Dollars in trust, for the Presbyterian Church, of Freehold New Jersey, the income of which said sum shall be applied as follows: (A) So much thereof shall be the regular rent for Pew No. 78. in said Church. (B) The sum of Twenty dollars ($20.00) yearly for floral decorations in Memory of the deceased members of my family. (c) The balance of said yearly income I bequeath to the Woman's Aid society of said Church. I further give outright the sum of Two thousand dollars; for a Memoral(sic) Clock to be placed in the tower of the Presbyterian Church, of Freehold New Jersey -- or a Memoral(sic) Window, as my Executors may decide for the members of James Smith Parkers family.

"FOURTH. I give and bequeath to my Executors in trust, One seventy-five foot front, lot situated on Brinckerhoff Avenue for a site for a Christian Science Church; provided said lots are sold, prior to my decease, the equivelent(sic) of said lot, be given for a like purpose; if said Church be erected within two years after my decease; in the western part of the town of Freehold New Jersey -- The income of said lot or amount; to be given my Executors in the lapse of time between.

"FIFTH. I give and bequeath to each The Cecilian Club; and Woman's Club of Freehold, New Jersey One Hundred Dollars.

"SIXTH. I give and bequeath to my nieces Lydia Reid Parker, Cornelia Bown Parker, Ellen White Parker, six sterling silver soup spoons six Teaspoons; six butter spreaders (Lily Pattern) Also my wardrobe, except what may be given as specific legacies which will be found in a sealed envelope in my private drawer of my Safe.

"SEVENTH. I further give and bequeath my friend Dena Clayton One Hundred Dollars.

"EIGHT. I give and bequeath my sons Edmund J. Parker and E. Ely Parker, each one of a pair of Dimond(sic) Earrings, also the balance of my jewelery. Dimonds(sic) and Silverware, to be divided equally between them. Further I give and bequeath to my sons Edmund J. Parker and E. Ely Parker Ten Thousand Dollars each within one year after my decease.

"NINTH. I also direct that all conveyances of Real Estate, be made as Trustees of Annie E. Parkers estate, however I appoint my two sons above mentioned to be the Executors of this will; and empower them the right to sell any or all of my Real Estate or Personal property, whenever it shall in their opinion proper to do so.

"TENTH. Should Edmund J. Parker or E. Ely Parker die without legal issue, or at the death of either. I appoint the Fidelity Trust Company of Newark New Jersey as Coexecutors; or upon death of both Sole Executor.

"ELEVENTH. I further direct my Executors or Trustees to erect a suitable house as a residence for a caretaker for Greenlawn Cemetery to coast(sic) not less than Three Thousand dollars or more than Ten Thousand dollars, within three years after my decease, unless said Cemetery has been sold.

"TWELTH(sic). I direct Fifty Thousand Dollars of my estate to be put in the Fidelity Trust Company of Newark New Jersey -- to be held in trust for Edmund J. and E. Ely Parker share and share alike. They to have the proceeds semi-annually. In case of the death of one the survivor to have the full benefit. Except in case there be legal issue -- They to have the full amount of the Fathers Trust fund, also that of the Uncles should he leave no lawful issue -- When Child or Children reach the age of twenty-five years, the principal shall be paid to the Child or Children share and share alike. The remainder of my estate both real and personal I give my two sons share and share alike.

"IN WITNESS WHEREOF, I have hereto set my hand and seal the Eighteenth day of January, Nineteen Hundred and Twenty-four."

-- -- -- -- -- -- -- -- -- --

"IN THE NAME OF GOD, AMEN.

"I, Annie E. Parker of the Borough of Freehold in the County of Monmouth State of New Jersey, do make publish and declare this to be a Codicil to my last will and Testament as follows.

"FIRST. I revoke bequest Fourth in my Will for a Lot on Brinckerhoff Avenue as a site for a Christian Science Church and give One

Thousand Dollars ($1000) to be held in Trust, by Executors or Trustees until such time as a Christian Science Church, be built in Freehold New Jersey. In the meantime my Executors or Trustees to have the income therefrom.

"SECOND. Should E. Ely Parker wish to continue to occupy 22 Brinckerhoff Avenue, as his Home it is not be sold, either the furnishings therein, until two years after my decease, Edmund J. Parker to have like personal priveledges(sic). Should either my Sons desire to purchase said residence I approve of such acquisition at a price not exceeding its assessed valuation.

"THIRD. Should Edmund J. Parker and E. Ely Parker predecease me leaving no lawful issue, my entire estate both real and personal I direct to be sold by the Union Fidelity Trust Company of Newark New Jersey, and held in Trust, the income to be divided equally between The surviving children of Henry William Parker, The First Presbyterian Church of Freehold for its upkeep and not for the Pastors salery(sic), Greenlawn Cemetery for its upkeep and beautifying -- The Home of the Aged at Ocean Grove New Jersey The Freehold Fire Department, and Elizabeth White, Daughter of James S. White and Ellen S. Conover. At the death of the person herein named, their portion to be divided among the other bequests herein named.

"FOURTH. I relieve my Executors or Trustees of the obligation of giving any bond or securety(sic) and waiving and dispensing, with the necessity of compliance of any and all statutory requirements otherwise applicable with regard to the giving of such bond or security. I also authorize my Executors, and Trustees, to hold any investments made by me in my lifetime even though they may be of a character not confirming with the legal requirements as to the investments of trust funds. My Executors or Trustees are exempted of any and all liabilities to which they might otherwise be subjected because of any losses or diminution in value of such securities of property that may result from their failure to dispose of the same.

("Writing on margin before signing. Annie E. Parker")

"Bequest Twelth(sic) of Fifty Thousand Dollars -- In case there are no Child or Children The proceeds from the $50,000 to be used for Greenlawn Cemetery and the Monmouth Co. Tuberlousis(sic) Hospital, and the sum of One Hundred Dollars, as a Xmas gift annually to Annie P. Rue, for Life."

"I hereby ratify my said will in all other respects. (See bound volume)

"IN WITNESS WHEREOF , I have hereunto set my hand and seal this 12th of November 1929."

"ANNIE ELY PARKER (SEAL)

-- -- -- -- -- -- -- -- -- --

The bill alleges that the trust fund mentioned in paragraph "Second" of the will "has not been set up and the income therefrom has not been paid." This is admitted in the answer of the County of Monmouth but the county nevertheless claims the benefits of that fund.

The bill also alleges that the executors have not set up the trust fund mentioned in paragraph "Third" of the will, but that "they have, however, paid the rent for pew number 78 for all of the years since the testatrix died," and that "The Presbyterian Church of Freehold refused to accept this bequest of two thousand dollars" for a memorial clock or memorial window. The church, by its answer, admits these allegations of the bill, except that the present board of trustees disclaims any knowledge of the alleged refusal to accept the "outright" bequest of $2000, and offers "to confer with executors regarding said bequest." The proofs show that nothing was ever done by the executors about this "outright" bequest of $2000.(sic) except that one of them spoke to Mr. Alex Moreau, whom he describes as "the leading spirit in the Presbyterian Church," and he "said he would not have a clock or a window, and that is all we ever did."

[1] The "Fourth" paragraph of the will and the "First" paragraph of the codicil must be read together.

The bill alleges that "The Christian Science Church has been established in the western part of Freehold and the Executors have paid six hundred dollars, or sixty per cent.(sic) of the one thousand dollar legacy." This allegation is admitted ...


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