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Hackensack Trust Co. v. Barkerding

Decided: October 16, 1950.

THE HACKENSACK TRUST COMPANY, AS TRUSTEE UNDER TRUST INDENTURE DATED JULY 3, 1928, MADE BY ADOLPH H. BARKERDING, AND AS ONE OF THE EXECUTORS OF THE LAST WILL AND TESTAMENT OF SAID ADOLPH H. BARKERDING, DECEASED, PLAINTIFF,
v.
CHARLOTTE J. BARKERDING, ET AL., DEFENDANTS



Grimshaw, J.s.c.

Grimshaw

[9 NJSuper Page 597] On July 3, 1928, Adolph H. Barkerding, of the Borough of Park Ridge, in Bergen County, executed

a declaration of trust by which he transferred to the Hackensack Trust Company as trustee, 200 shares of the common stock of Mittag & Volger, Inc.:

"IN TRUST, NEVERTHELESS, for the following uses and purposes, and subject to the following terms, conditions and powers hereinafter set forth, that is to say:

"FIRST: To hold and manage the same and invest and reinvest any surplus of net income as hereinafter stipulated;

"SECOND: To pay the entire net income as it accrued after deducting the necessary expenses incident hereto, unto the Trustor for and during his lifetime, and upon the death of the Trustor to pay out of the net income as aforesaid the sum of TWENTY-FOUR HUNDRED ($2400.00) DOLLARS per annum in equal monthly installments of TWO HUNDRED ($200.00) DOLLARS payable on the first day of each month unto CHARLOTTE J. BARKERDING of the Borough of Montvale, County of Bergen and State of New Jersey, for and during her lifetime, and upon the decease of the said CHARLOTTE J. BARKERDING, the Trustee is to terminate this trust and pay over and deliver the corpus thereof and any accrued but undistributed net income after deducting the necessary expenses as herein stipulated, unto the legal representatives of the estate of the trustor, and the receipt of said legal representatives shall be full and sufficient discharge to the Trustee of its obligations hereunder.

"THIRD: As compensation for its services in the administration of this trust the Trustee shall receive five per centum (5%) of all income collected hereunder by it, and upon the termination of this trust the sum of one per centum (1%) of the fair market value of the corpus of said trust as then constituted.

"FOURTH: After the death of the Trustor the Trustee shall add the net income remaining after the payment of the fees, expenses and advances set forth above to the corpus of the trust fund after which, said income so added to corpus shall be and become a part thereof and be dealt with as such.

"FIFTH: After the death of the Trustor the Trustee may invest and keep invested such excess income added to the corpus , or any part thereof, in such securities as are permissible under the laws of New Jersey for the investment of trust funds, and in distinguishing between income and corpus the Trustee shall not amortize premiums paid for trust securities and shall take no account of discounts, and after the death of the Trustor all stock and/or extraordinary dividends shall be treated as principal and added to the trust fund so far as permissible by law."

The life beneficiary is the former wife of the donor of the trust. When the Hackensack Trust Company took upon itself the administration of the trust estate, the 200 shares

of stock of Mittag & Volger, Inc., had a value of $20,400 according to an appraisal made by the trustee. In 1949 the assets of Mittag & Volger, Inc., were sold and the corporation went into voluntary dissolution. With the approval of this court the trustee consented to the sale of the corporate assets and upon the retirement of the 200 shares held by it the trustee received approximately $40,000 in cash and will receive several thousand dollars more.

At no time during the life of the trust have the dividends received upon the stock been sufficient to enable the trustee to pay to the life tenant the sum of $2,400 a year, nor is it probable that the trust estate will produce hereafter that much income.

Adolph H. Barkerding died on January 1, 1929, leaving a will, which was probated in Bergen County. The Hackensack Trust Company and Thomas G. Forbes, the executors named in the will, duly qualified. In his will, the testator, after directing the payment of debts and taxes and making several specific bequests, provided as follows:

"6. I give, devise and bequeath all the rest, residue and remainder of my estate, real and personal, wherever located and of whatever character to the Peoples Trust & Guaranty Company of Hackensack, New ...


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