On appeal from the Hudson County Court, Probate Division; certified by this Court ex mero motu.
For reversal -- Chief Justice Vanderbilt, and Justices Heher, Oliphant and Wachenfeld. For affirmance -- Justices Case and Burling. The opinion of the court was delivered by Heher, J.
The issue here is one of testamentary construction.
The testator, Peter J. Fox, died December 26, 1938. His will was made October 16, 1931. He devised the residue of his estate, real and personal, remaining after payment of his debts and certain general and specific legacies, to his wife, Anna Ryan Fox, and his three sisters, Georgina Fox, Cecelia Fox and Frances A. Fox, in equal shares, the survivor or survivors to take the share of such of these legatees as should predecease the testator. The residuary bequest was made the subject of paragraph 6 of the will.
Paragraph 7 is in these words:
"I hereby direct, authorize and empower my said executrices, in their absolute and uncontrolled discretion and as they shall think fit to continue for the benefit of my estate, and for such periods or respective periods as they shall think expedient, any business enterprise in which I may be engaged or interested in at the time of my death, whether alone or in partnership or otherwise, with any person, persons, or corporations."
And paragraph 8 makes the following provision:
"I direct that during and until my estate shall have been sold or converted into cash, my said executrices shall pay to my said wife, Anna Ryan Fox, the sum of $15.00 each week."
There were no payments to the widow under paragraph 8; and the subject matter of the litigation is the widow's claimed right to priority of payment of the accumulated arrearages out of both corpus and income.
At the time of his death, the testator owned 90% of the capital stock of the Phox Bus Company, the corporate operator of a single-bus franchise on Bergen Avenue in Jersey City. The assets of the corporation consisted principally of the franchise and the bus devoted to this use; there was little else. This was the only "business enterprise" in which the testator was "engaged or interested" at the time of his death. It was likewise his only business and his only source of income
at the time the will was made. The testator and his wife were cohabiting together at the time of the making of the will and at the time of his death; and her welfare after his death was undoubtedly his primary concern.
The will was probated March 24, 1939. On April 6th following, a decree of insolvency was entered against the Bus Company in the Court of Chancery of New Jersey, and a receiver was appointed. Taylor v. Phox Bus Company, 127 N.J. Eq. 255 (E. & A. 1940). The receiver continued the operation of the business until the bus was sold in December, 1944, pursuant to an order of the Court of Chancery. Taylor v. Phox Bus Company, 136 N.J. Eq. 35 (E. & A. 1944). Respondents' insistence on the brief that the testator was the owner of but 70% of the corporate capital stock, and that his widow, his sister Frances A., and his nephew L. Arthur Frame each owned 10% of the capital stock is resolved adversely to that contention by the statement of the evidence prepared under Rule 1:2-23 of this Court, and settled and approved by an order entered in the County Court on February 7, 1950. The statement certified that the estate of Peter J. ...