[8 NJSuper Page 425] One Andrew Smith, a resident of Perth Amboy, Middlesex County, New Jersey, died testate on March
18, 1949. His last will and testament was executed on October 11, 1921, in which he made the following disposition of his estate:
[EDIT ] IS OVERSTRUCK IN THE SOURCE.]
"Second: I give, devise and bequeath all of my estate both real and personal or mixed to my sister Kathrine Karoline Linden Skovborg of number [O> 219 Thompson Avenue, Roselle, New 417 East Avenue
"Third: I nominate, constitute and appoint my said sister Kathrine Karoline Skovborg executrix of this my last will and testament without requiring of her any bond for the faithful performance of her duties."
The testator made no other or further disposition of the corpus of his estate. His widow, Sigrid Smith, his sisters, Katherine Caroline Skovborg and Mathilde M. Smith, and two half brothers, Thomas Smith and John C. Smith, survive. At his death the testator was seized in fee of certain parcels of real estate.
The plaintiff requests the court to construe the testator's will and particularly to declare the nature of the estate of Mathilde Marie Smith in the real property of the decedent.
It is to be acknowledged that a gift to a trustee for the benefit of a cestui que trust is, in equity, deemed to be a gift to the cestui que trust as if it had been made directly. Neilson
v. Bishop , 45 N.J. Eq. 473 (Ch. 1889); Traverso v. Traverso , 99 N.J. Eq. 514 (Ch. 1926); affirmed sub nom., Traverso v. McMillin , 101 N.J. Eq. 308 (E. & A. 1927); Byrne v. Byrne , 123 N.J. Eq. 6 (Ch. 1938); affirmed, 124 N.J. Eq. 273 (E. & A. 1938).
It is proposed that the testator manifestly created the trust solely for the benefit of his sister Mathilde, omitting to designate any other as a beneficiary under any circumstances, consequently title absolute in the personalty and in fee simple in the realty vested at once in the named beneficiary. Cf. Post v. Herbert's Executors , 27 N.J. Eq. 540 (E. & A. 1876).
True, the rule was enunciated in Passman v. Guarantee Trust and Safe Deposit Co. , 57 N.J. Eq. 273 (Ch. 1898), that "the bequest of the income without limit as to time, or gift over which can operate, is a bequest of principal, if there be no expression of a contrary intent * * *. The same rule applies whether the gift be direct or through the intervention of a trustee." Westfield Trust Co. v. Beekman , 97 N.J. Eq. 140 (Ch. 1925); affirmed, 99 N.J. Eq. 435 (E. & A. 1926); National ...