On appeal from Superior Court, Chancery Division, whose opinion is reported in 7 N.J. Super. 584.
For affirmance -- Chief Justice Vanderbilt, and Justices Case, Heher, Oliphant, Wachenfeld and Burling. For reversal -- None. The opinion of the court was delivered by Burling, J.
[6 NJ Page 4] This appeal by the defendants from a judgment of the Superior Court, Chancery Division, Monmouth County, is addressed to the Appellate Division of the Superior Court but has been certified on our own motion.
A complaint was filed by the plaintiff seeking a judicial construction of the will of Evan F. Jones. An answer was filed by the defendants and the matter was submitted to the trial court for decision upon the pleadings and a stipulation of facts. The pertinent facts are that Evan F. Jones died testate on April 6, 1935. By his will, executed in 1898, he gave a specific legacy of $5,000 and a life estate in the residue of his estate to his wife, Mabel L. Jones, all in lieu of dower, and named his wife as executrix. The will provided that the remainder of his estate should pass to his children, if any, upon the death of his wife, the representative of any deceased child to take the parent's share. The will further provided that in the absence of any children, then upon the death of the wife, the remainder of the estate should pass "unto Ella Whitfield, my sister, Kate D. Jones, my sister, and Lewis D. Jones, my father, to be divided equally among them to them and their heirs and assigns forever." The testator left no children or representatives of any deceased child. His father, Lewis D. Jones, predeceased the testator, having died in 1906. Mabel L. Jones, the widow, and the two named sisters survived the testator. The testator's will was admitted to probate and his widow qualified as executrix thereunder. The estate consisted of personalty and one parcel of real estate of which the testator became seised during coverture. The widow took possession of the $5,000 legacy for her own use and enjoyed the life estate given to her under her husband's will until her death on August 5, 1946. She died testate and under the terms of her will the plaintiff, Donald E. Lawes, was named as executor. Her will was admitted to probate on August 19, 1946, and letters testamentary were issued to the plaintiff as executor. On January 20, 1947, letters of substituted administration with the will annexed were issued by the Monmouth County Orphans' Court to the defendants, Kate D. Lynch and Frank F. Whitfield, to complete the administration of the estate of Evan F. Jones.
The question submitted to the trial court was whether the will gave the residuary estate in remainder to Ella Whitfield,
Kate D. Jones and Lewis D. Jones, severally as tenants in common or as a class with a right of survivorship. The trial court decided that the gifts were several; that upon the death of Lewis D. Jones during the life of the testator, the gift to him lapsed with a resulting partial intestacy; that the testator died intestate as to one third of the residuary estate; that the widow, Mabel L. Jones, as heir at law and next of kin, was entitled thereto under the statutes of distribution and descent; that the widow had neither estopped herself from asserting her right thereto, nor had she waived such right; and that accordingly, the plaintiff, as executor of the estate of Mabel L. Jones was entitled to one third of the residuary estate with respect to which the testator, Evan F. Jones, died intestate. Judgment was entered accordingly on May 3, 1950. The present appeal is from that judgment.
The problems presented for our consideration are essentially the same as those submitted to the trial court. They involve the application of legal principles to stipulated facts.
One of the primary considerations in the judicial construction of a will is to ascertain the intention of the testator. Such intent is to be gathered from the context of the will in the light of the circumstances existing at the time of the will's execution. In re Fox, 4 N.J. 587 (1950). In our quest of this objective in the present case we are furnished with various established guide posts to which resort is made. Our immediate problem is to determine whether the language of the testator's will created a class gift or gifts in severalty. What are the guide posts? A gift to a class has been defined in this State "as a gift of an aggregate sum to a body of persons, uncertain in number at the time of the gift, to be ascertained at a future time who are all to take in equal or some other definite proportions, the share of each being dependent for its amount upon the actual number." Rippel v. King, 126 N.J. Eq. 297, 299 (Ch. 1939); affirmed on opinion below, 128 N.J. Eq. 179 (E. & A. 1940). See also Clapp, New Jersey Practice, Vol. 5, Wills and Administration (1950), § 181, p. 428, and cases therein cited. This definition
has been frequently quoted with approval. 75 A.L.R. 777; Page on Wills (3 rd ed. 1941), Vol. 3, § 1046, p. 196. Obviously the language of the testator's will does not come within the above definition of a class gift. Here the gift was to a definite number of persons nominatum. The rule to be deduced from the cases is that where a gift is to named persons, although they may constitute a class, a presumption arises that the intention of the testator was to make a gift to the named persons in severalty and not as a class. Rippel v. King, supra; Brown v. Fidelity Union Trust Co., 134 N.J. Eq. 217 (Ch. 1943); affirmed, 135 N.J. Eq. 461 (E. & A. 1944); Dildine v. Dildine, 32 N.J. Eq. 78 (Ch. 1880); Hand v. Marcy, 28 N.J. Eq. 59 (Ch. 1877); Clapp, supra, § 181; Page, supra, § 1049, p. 204; 105 A.L.R. 1396. A corollary of the rule, as pointed out in the same authorities, is that if it appears from the entire context of the will that the testator intended that the persons so named should take as a class, rather than as individuals, such a construction will be accorded to effectuate the testator's intention.
Another guide post which has been erected as an aid to us in resolving the problem herewith presented is that while the use of words which indicate a tenancy in common, such as "share and share alike," "to be divided equally" and the like, are not necessarily inconsistent with a gift to a class, Clapp, supra, § 181, p. 431; Page, supra, § 1050, p. 208, where such words stand alone in a will a gift in severalty with all donees taking as tenants in common is created. See Shearin v. Allen, 137 N.J. Eq. 276 (E. & A. 1945). It is also well established that where a legacy is to a named person "and his heirs" the word "heirs" is construed to be a word of limitation and not of substitution and does not prevent the lapse of the gift upon the death of the donee in the testator's lifetime, unless an intention to make a substitution can be gathered ...