Plaintiff by this suit seeks construction of the last will and testament of Charles Harvey Russell who died on February 3, 1936, and by his last will and testament duly probated by the surrogate of the County of Union provided as follows:
"FIRST: I appoint my wife, Marion Byrne Russell, my sole executrix and direct her to pay all of my funeral expenses and all of my just debts, from my personal property, which I hereby give and bequeath to her, together with all of my property, both real and personal,
for her sole use during her life and including all of my equity in the capital stock of all Companies, as shown by the certificates in my possession or deposited as collateral for loans, at the time of my death; all bonds and other securities; all of my interest in the property at 953 Kenyon Avenue, Plainfield, Union County, New Jersey, including my automobiles AND accessories and all of my jewelry, silverware and household goods; all of my equity in the Queen City and Home Building & Loan Association, of Plainfield, New Jersey; all of my interest in the lot and buildings, being lot number 25, Block 2, in Westmont Avenue, North Lavallette, Ocean County, New Jersey and all furnishings therein; all funds deposited with the State Trust Company, of Plainfield, New Jersey, either in joint account with my wife, Marion Byrne Russell, or in my own name.
"SECOND: I earnestly request my wife, Marion Byrne Russell, at her demise, to bequeath what there is then remaining of the estate as described above, or as it then is, or shall be, as near as possible, to the individuals, then living and in the same proportions, as set forth in the third paragraph of this will.
"THIRD: Should I survive my wife, Marion Byrne Russell, I appoint my son, William H. Russell, my daughter, Margaret Russell Hedges and my son, Philip Norman Russell, my executors and direct them to pay all of my funeral expenses and all of my just debts, from my personal property and dispose of the remainder of my property, both real and personal, as follows, to wit; One fourth to my son, William H. Russell (who is to divide one fourth of his share, equally, among his children, namely, Margaret Russell Ackerman, of Detroit, Michigan; Margaret Russell Bonsor, Junior, and Charles H. Russell Bonsor, of San Francisco, California), one fourth to my daughter, Margaret Russell Hedges, Plainfield, New Jersey, one fourth to my son, Philip Norman Russell, Plainfield, New Jersey, and one fourth to my son Howard Ewing Russell, Plainfield, New Jersey.
"FOURTH: Should I survive my wife, Marion Byrne Russell and my son William H. Russell, I direct my remaining executors to pay all of my funeral expenses and all of my just debts, from my personal property and dispose of the remainder of my property, both real and personal, as follows -- one-tenth to be equally divided among the children of my son, William H. Russell, namely, Margaret Russell Ackerman, Margaret Russell Bonsor, Jr., and Charles Russell Bonsor; three tenths to my daughter, Margaret Russell Hedges; three tenths to my son Philip Norman Russell and three tenths to my son, Howard Ewing Russell."
The first question to be determined is what estate did Marion Byrne Russell take under the first paragraph of the will? Plaintiff contends that she took an absolute estate in fee simple. The defendants contend that she took a life estate and that the testator died intestate as to the remainder.
The bequest in the first paragraph of the will to Marion Byrne Russell undoubtedly gave her a life estate with an implied power of disposal. The words employed by the testator in creating this estate are specific and simple. He gave his estate to his wife "* * * for her sole use during her life * * *." The matter comes squarely within the second rule laid down by the Court of Errors and Appeals in Trafton v. Bainbridge , 125 N.J. Eq. 474, 6 A.2d 209, that
"* * * Where the first bequest or devise to A is in terms indicating clearly that only a life estate is intended to be given, only a life estate passes, notwithstanding there be also given to A a power of absolute disposal of the property, even if such power be without any limit or restriction as to the time or manner of its execution, A does not take a fee, but a life estate plus the power of disposal, and a subsequent gift to B, at A's death, of such part of the property as remains undisposed of, is valid and ...