On appeal from the Chancery Division of the Superior Court.
For affirmance -- Chief Justice Vanderbilt, and Justices Case, Heher, Wachenfeld and Ackerson. For dismissal and reversal on merits -- Justices Oliphant and Burling. The opinion of the court was delivered by Vanderbilt, C.J. Oliphant, J. I am authorized by Mr. Justice Burling to state that he concurs in the views herein expressed.
This is an action for the acceleration and termination of a trust set up in the will of Edwin Fitch Northrup, who died on April 29, 1940. From a judgment of the Chancery Division of the Superior Court dismissing the complaint the plaintiffs took an appeal which we have certified on our own motion.
The determination of the appeal depends upon the intent of the testator as expressed in his will and it is therefore necessary to quote from it at some length:
"EIGHTH: All the rest, residue and remainder of my property whether real, personal or mixed, whatsoever and wheresoever situate, including any legacies that may lapse, fall or be ineffective, I give, devise and bequeath, to the First National Bank of Princeton, my executor and trustee, in trust nevertheless as hereinafter provided.
NINTH: In lieu of dower, I direct that all the net income of the trust herein created be paid to my wife, Margaret J.S. Northrup, during her natural life. If it shall appear that the net income shall not be sufficient for the proper care and maintenance of my wife, the principal of said trust, or such portion thereof as my trustee shall deem necessary, may be disposed of by my trustee for that exclusive purpose.
TENTH: I direct that upon the death of my wife, Margaret J.S. Northrup, that an amount not exceeding One Hundred and Fifty Dollars ($150.00) monthly be paid to my sister, Edith Northrup, during her natural life, out of the net income from the aforesaid trust and not otherwise, and that the balance of the net income from the trust herein created be paid over to the Ajax Electrothermic Corporation, to be used directly and not indirectly for the sole benefit of the officials and employees of the Ajax Electrothermic Corporation, such determination and distribution to be made by the Board of Directors of said Corporation.
ELEVENTH: I direct that upon the death of my wife, Margaret J.S. Northrup, and my sister, Edith Northrup, that the trust herein created shall terminate and the balance of the interest and principal remaining be paid over to the Ajax Electrothermic Corporation, absolutely, to be used directly and not indirectly for the
sole benefit of the officials and employees of the Ajax Electrothermic Corporation, such determination and distribution to be made by the Board of Directors of said Corporation.
TWELFTH: In the event that the Ajax Electrothermic Corporation is merged, amalgamated, reorganized, sold, or combined with some other corporation or institution, then, upon the occasion of any of the aforesaid events of this paragraph, I direct that my trustee shall determine to the best of its ability if the personnel of the aforesaid Ajax Electrothermic Corporation remains intact, substantially as a whole, either independently, or in connection with others, and upon such determination pay over to such organization, institution, or otherwise, funds and property as herein provided in substitution to the said Ajax Electrothermic Corporation. It is definitely understood that any action of my executor and trustee under the provision of this paragraph shall be final without liability or responsibility to any party or parties whatsoever.
THIRTEENTH: I direct, in the event that the said Ajax Electrothermic Corporation, or such other parties as determined by my executor and trustee entitled to benefits hereunder in accordance with item tenth hereof cannot be assembled or ascertained, refuses or is prohibited to accept any or all of the benefits hereby created, that my estate shall be disposed of as follows, namely: That my executor and trustee is hereby authorized to give and bequeath the rest, residue and remainder of my estate to some worthy charity, or charities, at the discretion of my executor and trustee, except that the term charity, or charities, as used herein shall not be construed to include any Church, or religious organization of any kind whatsoever. It is definitely understood that any action of my executor and trustee under the provision of this paragraph shall be final, without liability or responsibility to any party, or parties, whatever.
FIFTEENTH: I direct that my executor and trustee shall not dispose of the stock of which I die seized of the Ajax Electrothermic Corporation, unless it be deemed necessary, in its discretion, for the maintenance and support of my wife; or unless the corporation is dissolved, merged, amalgamated, reorganized, bankrupt, or by any operation of law ceases to exist, in that event my executor and trustee may exchange or sell the stock, accepting or retaining other stocks or securities in its place and stead. It is definitely understood that any action of my ...