Civil action. On complaint.
Robert K. Matlock died April 27, 1877, leaving a last will and testament. He was survived by his widow and six children. The widow and all of the six children are now deceased. Five of the children died unmarried. The sixth child died married and without issue.
Robert K. Matlock, in his last will and testament, gave, bequeathed and devised all of his estate, real and personal, to two designated individuals as trustees, and provided that all of the net interest and profit from the corpus of the trust fund should be paid to his wife during her widowhood. The will then provided as follows:
"After the intermarriage or death of my wife, by Executors and Trustees and the survivor of them will sell, at public or private sale, the homestead and balance of personal property, add the proceeds thereof to the fund in their or his hands and pay over semi-annually the net interest of said aggregate sum, share and share alike, among all my children.
"They, the Executors and Trustees aforesaid, will take care to leave the whole or aggregate of my estate intact and unbroken. But in case either of my children shall die, leaving a child or children, then it is my will that the principal of the portion of said child of mine shall be withdrawn from said aggregate by my Executors and Trustees and survivor of them and be paid over by them, with the interest due thereon, to said child or children or guardian or guardians thereof; and it is further my will, in case any of my said children
shall die without child or children, that the principal of the portion set off or allotted to my said child shall return to and make part of the remaining whole of my estate, to be incorporated therewith and the interest thereof divided among my surviving children."
It is clear that we are here confronted with a situation where the title to the corpus became vested in the trustee during the lifetime of designated persons in being, i.e. , (1) the creator's widow, and (2) his six children.
This is a suit for a construction of the will.
Plaintiff contends that on the death of the last surviving child, the testator having made no provision by a residuary clause in his will, the title to the corpus of the trust estate vested as if testator had died intestate. In this respect all parties are in accord. The dispute which does arise between them, however, is whether such vesting occurred on the date of testator's death or on the date of the death of his last surviving child.
It must be generally conceded that where a testator has failed to make provision by way of devise or bequest of any portion of his estate, insofar as that portion of his estate is concerned, it must pass by the residuary clause.
If the testator has failed to make provision for the devolution of the title of the residue of his estate, then and in that event, the title passes as if he had died intestate. Skellenger's Ex'rs. v. Skellenger's Ex'rs. , 32 N.J. Eq. 659, 662; Brown v. Fidelity Union Trust Co. , 126 N.J. Eq. 406, 417; 9 A.2d 311.
In order to aid in a determination of the time at which title vested, it becomes necessary to ascertain what estate, if any, which the several ...