On appeal from the Superior Court, Chancery Division.
For affirmance -- Justices Case, Heher, Oliphant, Wachenfeld, Burling and Ackerson. For reversal -- Chief Justice Vanderbilt. Vanderbilt, C.J. (dissenting).
This cause is here on our own certification.
The case involves the construction of a paragraph of the will of Rosa E. Green, deceased, of the Borough of Haledon. The paragraph provided as follows:
"Third: I give and bequeath unto my husband, William L. Green all of the money which I have on deposit at the Paterson Savings and Trust Company, Paterson, New Jersey, however, any money which is in the said account at the time of my said husband's death, the said sum shall be held by my niece, Catherine King Fox, absolutely and forever."
The will was admitted to probate on April 25, 1949. The husband, William L. Green, died intestate on May 30, 1949. The legacy bequeathed under the paragraph in question is still on deposit in the Paterson Savings and Trust Company.
The question presented is whether William L. Green became the absolute owner of the money on deposit, the gift over to the plaintiff, Catherine King Fox, being void, or whether the husband took a life estate only and the fee vested in the niece.
The bequest to the husband was in general terms with an absolute power of disposal. Under such circumstances the gift over of the part not disposed of is void. As determined by Judge Grimshaw below, the husband, William L. Green, took an absolute ownership, an estate in fee, of the bank account. Downey v. Borden, 36 N.J.L. 460 (E. & A. 1872); Tuerk v. Schueler, 71 N.J.L. 331 (E. & A. 1904); Gaston v. Ford, 99 N.J. Eq. 592 (Ch. 1926); Briggs v. Faulkner,
120 N.J. Eq. 1 (Ch. 1936); Trafton v. Bainbridge, 125 N.J. Eq. 474 (E. & A. 1939).
Appellants ask this Court to explicitly and expressly overrule the long established law of this State. This we decline to do. Such action would be fraught with great danger in this type of case where titles to property, held by bequests and devises, are involved. A change of the established law by judicial decision is retrospective. It makes the law at the time of prior decisions as it is declared in the last decision, as to all transactions that can be reached by it. On the other hand a change in the settled law by statute is prospective only. Stockton v. Dundee Manufacturing Co., 22 N.J. Eq. 56 (Ch. 1871).
The judgment of the Superior Court is affirmed.
VANDERBILT, C.J. (dissenting).
I am constrained to dissent from the views of the majority of the court, first, because they apply to the case a technical rule of law to defeat the plain intent of the testatrix without serving any public policy whatever in so doing and, secondly -- and this seems to me to be even more important -- because their opinion involves a view of the judicial process, which, if it had been followed consistently in the past, would have checked irrevocably centuries ago the growth of the common law to meet changing conditions and which, if pursued now, will spell the ultimate ossification and death of the common law by depriving it of one of its most essential attributes -- its inherent capacity constantly to renew its vitality and usefulness by adapting itself gradually and piecemeal to meeting the demonstrated needs of the times.
The controversy in the instant case centers around the third paragraph of the will of Rosa E. Green:
"Third: I give and bequeath unto my husband, William L. Green, all of the money which I have on deposit at the Paterson Savings and Trust Company, Paterson, New Jersey, however, any money which
is in the said account at the time of my said husband's death, the said sum shall be held by my niece, Catherine King Fox, absolutely and forever."
Not only is the meaning of this bequest entirely clear to any mind not encumbered with the involved and technical feudal lore of estates in fee simple, estates in fee tail and estates for life and the medieval doctrines of seisin and possession, but it is consonant with her entire testamentary plan. By the second paragraph of her will she gave her husband a life estate in her homestead with a remainder in fee to the plaintiff, her niece; by the fifth paragraph she named the plaintiff as her sole residuary legatee and devisee; by the sixth paragraph she designated the plaintiff's daughter to take her place and stead in the event that the plaintiff should predecease the testatrix; and by the seventh paragraph she named the plaintiff as her executrix.
By the words in the third paragraph, "any money which is in said account at the time of my said husband's death, the said sum shall be held by my niece, Catherine King Fox, absolutely and forever," the testatrix beyond any doubt intended that her husband could use up the bank account but that if he did not, the plaintiff should take what was left of it on his death. To hold otherwise is to proceed on the untenable assumption that the quoted words are meaningless and to ignore the elementary principle that the provisions of a will are not to be construed as meaningless except on the failure of every attempt to render them effective, In re Fox, 4 N.J. 587, 594 (Sup. Ct. 1950); In re Fisler, 133 N.J. Eq. 421, 425 (E. & A. 1943); Shannon v. Ryan, 91 N.J. Eq. 491, 494 (E. & A. 1920). This principle is an integral part of the most fundamental rule of testamentary construction, i.e., the duty of the court is to ascertain what the intent of the testator was and, then, having ascertained it, to give it effect, In re Fox, supra, 4 N.J. 587, 593 (Sup. Ct. 1950); Blauvelt v. Citizens Trust Co., 3 N.J. 545, 552 (Sup. Ct. 1950); National State Bank of Newark v. Stewart, 135 N.J. Eq. 603, 605 (E. & A. 1944); Colwell v. Duffy, 109 N.J.L. 423, 424
(E. & A. 1932); Dennis v. Dennis, 86 N.J. Eq. 423, 429 (E. & A. 1916); Kent v. Armstrong, 6 N.J. Eq. 637, 638 (E. & A. 1850). The intention of the testator in every case is, of course, subject to rules of public policy and statutory law, National State Bank of Newark v. Stewart, supra, 135 N.J. Eq. 603, 605 (E. & A. 1944), but when its objective is lawful, all arbitrary rules of construction must give way, Colwell v. Duffy, supra, 109 N.J.L. 423, 424 (E. & A. 1932). The distinction between the ...