On appeal from the former Court of Chancery.
For modification -- Chief Justice Vanderbilt, and Justices Case, Wachenfeld and Ackerson. For reversal -- Justices Heher and Burling. The opinion of the court was delivered by Case, J. Burling, J. (Dissenting.) Mr. Justice Heher authorizes me to say that he agrees with the views expressed herein.
[2 NJ Page 216] The bill seeks a construction of a portion of the sixth paragraph of the will of Marie Louise Binney, deceased,
with particular respect to the rights of the grandchildren and the great-grandchildren of the testatrix and the incidental interest of the widow of a grandchild.
"Sixth: I give and devise the rest and residue of my property and estate, and likewise all I have the power to dispose of by will, to my husband, his heirs and assigns, as sole executor and Trustee, in Trust, to enjoy the net income during his life free from all debts, contracts and control and the principal at his death to be held continued in trust for the benefit of my children. The net income to be divided equally between them during their life, free from all debts, contracts and control. On the death of either of my children, the principal to be held still in trust, for the benefit of my grandchildren; her share of the net income to be paid to her child or children during their life, free from all debts, contracts and control, with the power of disposal by will of the mother's share of the principal. Should neither child survive her father, I give him the disposal by will of the principal of my estate; the issue of a deceased child, nevertheless, in any case to the parents share. In case of the decease before me of my husband and of both my children, leaving no issue surviving them, I give the net income of my estate to my sons-in-law, Franklin Woodward Earl and Prince Camporeale, to be equally divided between them during their lives. At the decease of one of them the whole income to be given to the survivor and at the death of both, the property which I may have received from my husband, or which I may have the disposal of under his will shall be divided among his heirs. In the same case any portion of my property which I have received from my father, of which under his will I may have the disposal, shall be given to his heirs. In case my husband should not survive me, or, if he should, at his death, I appoint as my Executors and Trustees, my daughters, Marie and Florence, Mr. Joseph B. Townsend, (my Trustee under my father's will) and the Burlington City Loan and Trust Company. I desire my will to be probated and administered in New Jersey."
The estate consists entirely of personalty. Testatrix died January 26, 1908, survived by her husband and by her daughters, Marie and Florence. Her husband died in 1909, also survived by the two daughters. Marie died November 22, 1929, survived by her only child, Binney W. Earl, presently alive, unmarried and an adjudged lunatic. Florence died in 1944, having borne two children, Albert Alexander Kingsland and Anna, referred to in the papers as Princess Anna. Albert Alexander Kingsland died in 1923, thus predeceasing his mother, Florence; he was survived by his wife, Marchesa
Cattaneo, and his son, Alexander Kingsland, both of whom are still living and are the appellants in this cause. Princess Anna, the daughter of Florence and the granddaughter of the testatrix, is still living, as are also her two children, Don Pietro and Laura Mariesol.
Our first duty is to determine the intent of the testatrix, an intent to be drawn from the will as written, illuminated by such circumstances as existed at the date of the execution. We are not to guess what the testatrix would have done if she could have foreseen what would happen after her death, or to frame a document which we think would be a fitting last will and testament. Blanchard v. Blanchard, 116 N.J. Eq. 435 (Ch. 1934); affirmed on the opinion below, 122 N.J. Eq. 372 (E. & A. 1937). The essential questions which emerge are (1) the nature and extent of the gifts to the grandchildren, (2) the legality of the power to dispose by will and (3) the results which flow from the determination of those inquiries.
The outstanding feature of the will is that the testatrix labored to preserve the principal of her residuary estate, entire and undivided, and that she stated, iterated and reiterated limitations upon the use of the income. The principal was to be held intact during her husband's lifetime; it was likewise to be held intact during the lifetime of her children with a division of the income; and even after the death of her children the principal was still to be held intact and the respective child's share of the income was to be paid to the child's child or children "during their life, free from all debts, contracts and control" -- the combination of plural possessive pronoun and singular noun suggesting a collective interest in a joint tenancy. Only when it came to the exercise of the power by will was there to be a division of the principal, and the division so indicated was not linked to the number of those who potentially were given the income during life. There are no words of earlier severance, distinction of plurality of interests. The disposition was not to be of the prorated share of a single grandchild but "of the mother's share." The purpose of the testatrix to preserve the
integrity of her estate beyond the lifetime of an individual beneficiary, with consequent survivorship, persists in the provisions contingent upon the death of her husband and her two children without issue before her own death, namely, the gift of the net income to her sons-in-law, Franklin Woodward Earl and Prince Camporeale, to be equally divided between them during their lives and upon the death of either the whole income to go to the survivor, leaving the testatrix intestate as to the remainder of her property with the exception of such property as she had received from her husband, over which she had the power of disposal under his will, and such as she received from her father, over which, under the latter's will, she had the power of disposal.
There is no indication of an intent on the part of the testatrix that the life estates created for the grandchildren should be continued to the great grandchildren. No gift could go to any of the great-grandchildren under the will unless through the exercise by the appropriate person of the power to appoint; and even then the gift would arise, not from the present will, but from the exercise of the power. The grandchildren of the testatrix. Albert Alexander Kingsland, Princess Anna and Binney W. Earl, were all living at the time of the death of the testatrix, but the possibility of the birth of additional grandchildren after the death of the testatrix is conceded. This possibility, coupled with the wording of the will, favors the conclusion that the testatrix meant the gift for life after the life estate of her daughters to go to her grandchildren as a class flowing from either daughter, comprehensive of after-born grandchildren if there should prove to be such; the gift as to any grandchild to terminate necessarily at his death because the gift was merely of a life estate. Further, we believe the testatrix intended the gifts to the children of her respective daughters to be in joint tenancy if the children of a daughter should number more than one and that the survivor should have the power to dispose "by will of the mother's share of the principal."
The application of that scheme to the facts of the case is that it gave to Binney W. Earl the full ...