This action is brought for the construction of the will of Antonio Maglio, who died December 9, 1948, leaving a last will and testament dated September 11, 1939, in which will he named the defendants Rocco Caruso, Leonora Romano and Pasquale Romano as executors and trustees. The will was probated on July 18, 1949.
Surviving decedent are five children and the aforenamed Rocco Caruso, the widower of a deceased daughter, and fourteen grandchildren, all of whom have been joined in this action for the purpose of declaring their interest, if any, in the estate. The will provides for a gift over of the residuary estate to the Overlook Hospital at Summit, New Jersey, under certain conditions which have not come to pass. The hospital is a party defendant so that its interest, if any, in the estate may be considered.
Complainant also charges that a certain lease made by the executors to one Frank Romano (the son of the two executors Leonora and Pasquale Romano) was improvidently made and prays that the lease be declared invalid. This latter question is not to be herein passed upon since it is agreed that a practical solution will be arrived at between the parties dispensing with the question of the validity of the lease.
The paragraphs of the will which are pertinent, and to which reference will be made, are as follows:
"THIRD: I direct my Executors, hereinafter named, to divide the entire rest, residue and remainder of my Estate, personal estate or mixed, whatsoever same may consist and wheresoever situate, or to which I may be entitled at the time of my death, into six equal parts, each of said parts I give, devise and bequeath unto my Trustees, hereinafter named, to be held by him for the uses and trusts and for the purposes hereinafter set forth.
"FOURTH: I direct that within three months after my death that my Executors and Trustees appoint a board of three appraisers, which appraisers shall appraise any and all real property of which I may die seized and their appraisal shall be absolute and final for the purposes hereinafter designated, and binding upon all my heirs, my heirs at law and upon all the beneficiaries under this Will.
"FIFTH: I hereby give, devise and bequeath unto my Trustees, hereinafter named, all my real estate and I do hereby authorize and empower my said Trustees to dispose of, sell and convey any part of my real estate and I further authorize my Trustees to sub-divide any part of my real estate and to sell same in tracts or lots or by the entire tract.
"SIXTH: I do hereby further authorize my Trustees in their sole discretions to manage my real estate holdings in such a manner as they deem fit and essential.
"SEVENTH: I hereby direct that my Trustees do hereby divide any moneys received from any sale or conveyance of any real estate into six equal parts, each of which part they are to retain control over as Trustees in same manner as in the Fourth paragraph of this Will.
"EIGHTH: I direct that my Trustees do open six Trust accounts in any State Bank by them chosen for the benefit of those hereinafter named and I direct that my Trustees make no disbursement of any of the principal of the Trust Funds for a period of thirty-five (35) years but that the beneficiary of the Trusts are to receive the interest on the Trust Fund each year.
"NINTH: If as a result of economic conditions or otherwise, my real estate does not return a favorable profit, I hereby authorize my Trustees to use moneys in the Trust Funds provided, however, that each Trust Fund be assessed an equal amount. If there are no funds available I then direct my Trustees to call upon the beneficiaries hereinafter named to assist, however, if they, my heirs, fail to assist my Trustees, I then direct that all my real estate be conveyed in fee simple to the Overlook Hospital, Summit, New Jersey.
" TENTH: I further direct that if some of my beneficiaries refuse to assist that upon service of notice upon those refusing beneficiaries to signify their intention to aid in thirty (30) days that upon failure to aid his or her trust be terminated and be divided among the other beneficiaries in equal shares.
"TWELFTH: I hereby direct that my Trustees hereinafter named set up Six Trust Funds one ...