Jacobs, Donges and Bigelow. The opinion of the court was delivered by Donges, J.A.D. Bigelow, J.A.D. (concurring).
This is an appeal from a judgment entered in the Superior Court, Chancery Division.
The plaintiffs, as executors and trustees of the last will and testament of Clara Vanderhoven, deceased, instituted an action in the Superior Court, Chancery Division, asking for a construction of the third paragraph of decedent's will and for other instructions.
The decedent died a resident of Union County, New Jersey, on April 29, 1946. At the time of her death, she was 96 years old and a spinster. She left neither father, mother, brother or sister surviving her. Her nearest next of kin were two first cousins who are party defendants to this suit and many distant relatives who are likewise parties herein. Decedent's
will was probated in the Prerogative Court on May 15, 1946, and letters testamentary were issued thereon to plaintiffs.
By her last will and testament, testatrix gave the residue and remainder of her entire estate to plaintiffs in trust for the following uses and purposes:
"b: From the principal of the trust fund to erect on lands in said Hazel Wood 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."
The defendants contend that the gifts to the Hazel Wood Cemetery and to the Rahway Hospital are violative of the rule against perpetuities and, therefore, are void. They further contend that the provisions of the will applying to the accumulation of income are invalid.
The court below found that all the gifts were valid and awarded judgment accordingly.
The defendants concede that both the Hazel Wood Cemetery and the Rahway Hospital are charitable institutions. That the testamentary gift to the Hazel Wood Cemetery is charitable is amply shown by numerous decisions of our courts. See MacKenzie v. Trustees of Presbytery of Jersey City, infra; Noice v. Schnell , 101 N.J. Eq. 252 (E. & A. 1927); George v. Braddock , 45 N.J. Eq. 757 (E. & A. 1889); Vineland Trust Co. v. Westendorf , 86 N.J. Eq. 343 (Ch. 1916); affirmed, 87 N.J. Eq. 675 (E. & A. 1917); Woodstown Nat'l. Bank, etc., Co. v. Snelbaker , 136 N.J. Eq. 62 (Ch. 1944); affirmed, 137 N.J. Eq. 256 (E. & A. 1945). That the Rahway Hospital is a charitable institution and that the gift to it is for charitable purposes is well supported by the case of Nichols v. Newark Hospital , 71 N.J. Eq. 130 ...