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Orange First National Bank v. Preiss

Decided: February 23, 1949.

THE ORANGE FIRST NATIONAL BANK AS AN EXECUTOR OF AND A TRUSTEE UNDER THE LAST WILL AND TESTAMENT OF FRANK C. PREISS, DECEASED, PLAINTIFF,
v.
MAE L. PREISS, INDIVIDUALLY AND AS AN EXECUTOR OF AND A TRUSTEE UNDER THE LAST WILL AND TESTAMENT OF FRANK C. PREISS, DECEASED, ET ALS., DEFENDANTS



Civil action. Complaint for construction of will.

Stein, J.s.c.

Stein

Frank C. Preiss died December 26, 1946, leaving a will probated January 9, 1947, upon which letters testamentary were issued to the plaintiff and Mae L. Preiss.

Plaintiff, The Orange First National Bank, requests instructions of the Court as to the extent to which the executors and trustees shall invade the remaining corpus of the residuary estate for the purpose of paying the expenses of testator's widow, Mae L. Preiss, mentioned in testator's will, and whether the trustees shall treat and pay from corpus as a living expense of his said widow or as an expense of maintaining her home and household, the premiums due since his death and which may become due in the future for fire and liability insurance, and the taxes assessed since testator's death and to be assessed in the future on the premises devised by testator to his said widow and in which premises she lives.

In his will testator bequeathed to his wife certain personal property and devised to her the premises in which she and testator had lived for many years until his death. Their marriage was childless. The pertinent paragraphs of his will are:

"FIFTH: All the rest, residue and remainder of my property and estate, real and personal, wheresoever situate and of whatsoever it may consist, whether in possession or remainder, which I shall own or which shall be subject to my disposition at the time of my death, or over which I may have any power of appointment by will or otherwise, together with such property as may become a part of the residuum by reason of the provisions contained in paragraphs numbered second and third above, I give, devise and bequeath unto my trustees hereinafter named, IN TRUST for the following uses and purposes; to manage and control, invest and re-invest and to pay to my said wife, Mae L. Preiss, during the term of her life, in quarter yearly payments, all the income therefrom, and to pay from the principal thereof, to the extent that said income is not sufficient, her living expenses, the expense of maintaining her home and household with servants and nurses, and the cost of such medical, surgical and hospital care she may receive.

"SIXTH: Upon the death of my said wife, or if she should predecease me, I direct my remaining trustee to pay from my residuary trust estate the sum of Twelve Hundred ($1,200.00) Dollars annually, in equal quarterly payments, to my brother, George D. B. Preiss, during the term of his life. Should my said wife and brother both predecease me, or in the event that either or both of them survive me, then upon the death of the survivor of them, I direct my said trustee to pay from said residuary trust estate the sum of Twelve Hundred ($1,200.00) Dollars annually, in equal quarterly payments, to Anna M. Preiss, wife of my said brother during the term of her life. My trustees, and the survivor of them and its successors are hereby empowered to invade the principal of my said residuary trust estate to the extent that the income therefrom does not equal the payments directed in this paragraph to be made.

"SEVENTH: Should my said wife, brother and sister-in-law predecease me, or should one, two or all of them survive me then after the death of the survivor of the three of them, and when Sussan Margaret Schneider, daughter of my cousin, Margaret Bayer Schneider, attains the age of twenty-five years, or would have attained that age had she lived, I direct my remaining trustee to transfer, pay over and deliver the then balance of my said residuary trust estate, together with all accumulated income thereon, to such of the children of my said cousin, Margaret Bayer Schneider, namely, Frank Lewis Schneider and Sussan Margaret Schneider, as shall be living at that time and the issue per stirpes of each of said children as shall have died, in equal shares, share and share alike, the issue of each deceased child to take the share which such child would have taken if living."

All of the beneficiaries named above survived the testator and are still living and of full age excepting Sussan Margaret Schneider and Frank Lewis Schneider, who are infants under the age of fourteen years and appear in these proceedings by Milton L. Schneider, their guardian. The allegations of the bill of complaint are admitted by answers filed on behalf of the respective defendants.

It appears that Mae L. Preiss, the testator's widow, at the time he executed his will and for some time prior thereto was in ill health and under medical care. She was unable without assistance to perform physical acts. Testator, who was a member of the dental profession had prior to his death given up his practice in order to nurse his wife and to give her the attention she required. Since his death her illness has persisted. She is an invalid confined to the second floor of her home where she is being cared for twenty-four hours a day by nurses and a physician. The executors of which the plaintiff

is one have expended for the care and maintenance of the widow from December 26, 1946 to December 31, 1947, $10,280.37 of which $8,970.35 represented corpus and $1,310.02 was income; and during the period from January 1, 1948 to June 30, 1948, the sum of $5,580.24, of which $4,269.50 represented corpus and $1,310.74 was income. The gross estate which came into the hands of the executors amounted to $89,319.55. After distributing the personal property specifically bequeathed, the payment of debts, taxes and administration expenses, and payments from corpus for the care and maintenance of the widow, the balance of the corpus remaining in the hands of the executors on ...


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