McGeehan, Jayne and Wm. J. Brennan, Jr. The opinion of the court was delivered by Jayne, J.A.D.
[10 NJSuper Page 178] One Antonio Maglio, a resident of the Township of Millburn, Essex County, New Jersey, died on
December 9, 1948. He had duly executed a last will and testament dated September 11, 1939, which was admitted to probate on January 18, 1949.
The will was not composed with the clarity and explicitness of expression to be desired, which deficiency inspired the institution of an action in the Chancery Division to elicit a judicial construction of the instrument. The present appeal brings before us for review the final judgment in that proceeding.
The particular paragraphs of the will which are of immediate pertinency are here transcribed:
"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 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 (30) days that upon failure to aid his or her trust be terminated ...