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Alper v. Alper

Decided: April 25, 1949.

HAROLD ALPER, COMPLAINANT-APPELLANT,
v.
THERESA ALPER, DEFENDANT-RESPONDENT, AND JEROME ALPER ET AL., DEFENDANTS-APPELLANTS



On appeal from a decree of the former Court of Chancery advised by Vice-Chancellor Stein, whose opinion is reported in 142 N.J. Eq. 347.

For affirmance -- Chief Justice Vanderbilt, and Justices Case, Heher, Wachenfeld, Burling and Ackerson. For reversal -- None. The opinion of the court was delivered by Heher, J.

Heher

The primary question here is the meaning and the validity of this testamentary condition:

"Tenth: -- It is my will and command that should any of my children or said grandchildren institute or maintain any proceeding in any court, for the purpose of attacking the validity of this Will, or for the purpose of effecting a disposition of my estate other than in the specific manner aforementioned, by court proceeding or otherwise, then it is my will and I do hereby order that the respective devises and bequests, other than those herewith made to my executrix aforementioned, be cancelled and deemed forfeited, unless otherwise ordered verbally and in writing by my said executrix, regardless of whether or not they have in any way participated in said contest, and in such event, I devise and bequeath their respective shares to my said devoted and faithful child and executrix, Theresa Alper, aforementioned, provided that such contest by court litigation is not instituted in the first instance by my said executrix, it being my purpose and intent that the validity of this Will and its purposes, as herein expressed, should not be attacked in any manner whatsoever, directly or indirectly, by my said heirs."

The decedent died July 12, 1945. By a will made May 4, 1939, he devised and bequeathed certain real property and the residue of his estate to seven of his eight children and to the children of the eighth child, Goldye Shapiro, in these shares: 40% to his daughter Theresa; 10% each to his daughters Pearl and Mildred and his sons Nathaniel and Harold, and the like interest to Theresa in trust for Goldye's children; and 5% each to his son Jerome and his daughter Cecele. There were also certain charitable bequests payable out of the personal estate only. The testator expressed the "same love and affection" for "each and all" of his children, and explained that his estate was divided "on the basis of the financial needs and requirements" of his children and grandchildren. Goldye is not a beneficiary under the will. She was estranged from her husband; and it is clear that the testator thus sought to put beyond his reach the share of the estate that would otherwise have gone to Goldye.

Goldye entered a caveat to the probate of the will, charging that it was the product of undue influence exercised by Theresa, and prosecuted the inquiry to a conclusion. The Essex Orphans' Court resolved the issue against her and directed probate of the will. On Goldye's appeal, the decree was affirmed in the Prerogative Court. In re Alper's Will, 142 N.J. Eq. 529 (1948). The decree of the Prerogative Court was this day affirmed by this court. 2 N.J. 104.

The subject matter of the bill of complaint is the validity of certain inter vivos transfers of real property and moneys and bank credits made by the testator, allegedly induced by undue influence exerted by Theresa. The learned Vice-Chancellor ruled that under the cited clause of the will the proceedings on the caveat worked a forfeiture, in favor of Theresa, of all devises and bequests to the testator's other children and the grandchildren, and so they are without interest in the subject matter.

I.

It is the insistence of appellants that the condition "is ambiguous and should not have been enforced." The principle invoked is that conditions subsequent are to be strictly construed; and that such conditions must be definite and certain, and if the terms are so vague as to render doubtful the event which will operate to defeat the estate, the condition is void for uncertainty and the gift is absolute. Den v. Lawrence Church, 20 N.J.L. 551 (Sup. Ct. 1845); Girard Trust Co. v. Schmitz, 129 N.J. Eq. 444 (Ch. 1941). And the argument is that while the phrase "any of my children," standing alone, would be inclusive of the child not named as a beneficiary, the language of the condition, considered as a whole, reveals an intention to make the forfeiture operative only in case of a breach of the condition by one of the beneficiaries designated in the will. It is said that the personal pronoun "they" in the subsequent phrase "regardless of whether or not they have in any way participated in said contest," and the words " their respective shares " in the later provision for a gift over for breach of the condition, have

reference to and serve to modify the earlier phrase "my children or said grandchildren" and signify a purpose to make the "blanket forfeiture" operative "only in the event that one or more beneficiaries contested the will." We are not in accord with this interpretation.

The antecedent noun equivalent to which the personal pronoun "they" is referable is to be found in the provision for the "cancellation" and "forfeiture," for condition broken, of "the respective devises and bequests, other than those herewith made to my executrix aforementioned." The breach of the condition shall work a forfeiture regardless of the non-participation in the "contest" of the beneficiaries of such "devises and bequests," and there is in that event a gift over of "their respective shares" to Theresa. This is to give an orderly arrangement and relation to the ...


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