This suit is brought by the executors and trustees of the will of Clara Vanderhoven for instructions and the construction of her will. Clara Vanderhoven died, a spinster, in her 96th year, in the year 1946 leaving a last will and testament admitted to probate on May 15, 1946. By her will testatrix gave the residue and remainder of her entire estate to plaintiffs in trust for the following uses and purposes, among others:
"b: From the principal of the trust fund to erect on lands in said Hazelwood Cemetery, if sufficient lands in said Cemetery can be acquired therefor, otherwise on lands adjacent thereto, a Chapel -- in memory of my father, James Vanderhoven, my mother, Mary Vanderhoven, my brother, Ross Vanderhoven and myself -- to be used, without distinction as to creed, for mortuary and memorial services for persons buried in said Cemetery or any other Cemeteries or burying grounds
in the vicinity thereof; and to expend for the erection of said Chapel not less than the sum of One Hundred Thousand Dollars nor more than the sum of Two Hundred Thousand Dollars. Such Chapel to be built of granite and in Gothic style and to have a seating capacity of seventy-five to one hundred and twenty-five.
"c: To invest and reinvest the balance of the trust fund in such securities as are legal investments for Savings Banks in the State of New Jersey and collect the income therefrom.
"d: To use so much of the net income as may be necessary for the care and preservation of such Chapel, including the salary of a caretaker and the heating of such building when necessary.
"e: Should the income from the funds of the Hazelwood Cemetery Association, in the judgment of my trustees or the survivors or survivor of them, be insufficient to properly care for said Cemetery, then to use so much of the balance of the net income for that purpose as my said trustees may deem necessary.
"f: To pay, semi-annually, so much of the balance of the net income from the trust fund to the Rahway Hospital, at Rahway, New Jersey (by whatever name said Hospital may be known) if and when a new Hospital shall have been erected, as may be necessary to defray any deficiency in the general operating expenses of such Hospital. Interest on debts or obligations of said Hospital shall not be construed as general operating expenses.
"g: To add any surplus income there may be to the principal of the trust fund."
Plaintiffs filed their first account, which account was allowed by decree of the Prerogative Court on June 3, 1948, and which account shows the balance of the estate consisting of securities and cash in the amount of $1,270,934.87 corpus and $31,888.79 income as of December 31, 1947.
Testatrix executed her will on August 8, 1924. She left neither father, mother, brother nor sister surviving her. Her nearest next of kin were two cousins who are party defendants to this suit and many distant relatives who are likewise parties herein. Her only brother, Ross Vanderhoven, died in 1921. He had been for twenty-one years prior to his death a trustee of The Hazel Wood Cemetery, and secretary and treasurer from 1876 until the date of his death. The testatrix' parents and brother are buried in the Vanderhoven plot in The Hazel Wood Cemetery. The Hazel Wood Cemetery was organized September 30, 1859, pursuant to the provisions of the Rural Cemetery Associations, P.L. 1851, p. 254.
The testatrix and her brother, Ross Vanderhoven, were both
unmarried, and during all the period of her brother's services as secretary and treasurer of the cemetery they occupied the same house in Rahway as their home, and testatrix remained there after her brother's death and until her own demise. Testatrix was undoubtedly fully conversant with her brother's activities with respect to the cemetery and of the affairs of the cemetery. Under her brother's will she received over $400,000 which, under her own will, is largely devoted to the cemetery's use. She was a frequent visitor to the cemetery and made a practice of spending hours at a time there and was interested in its beautification and development.
The Vanderhoven family plot adjoins a plot conveyed to the City of Rahway for soldiers' burials.
The issues here involved will be discussed in the order of their statement in the pretrial order:
1. "Is the bequest of $100,000 to $200,000 for the erection of a chapel in memory of testatrix' father, mother, brother and herself, a charitable bequest?"
In construing a last will, the true intention of the testator, to be gathered from the whole will, must be given effect, and it ought not to be so construed as to impute to the testator a purpose to die intestate or partially so if it can be avoided, the law preferring a construction that will prevent, rather than one which ...