The plaintiff herein seeks the construction of the will of Harry Morlock, deceased, to the end that the power of the plaintiff as substituted trustee may be ascertained.
Harry Morlock, the testator herein, died on April 21, 1949, a resident of Atlantic City, leaving a will dated September 12, 1944, which was, on May 2, 1949, admitted to probate by Atlantic County Surrogate's Court, and letters of trusteeship thereunder issued to Harry A. Morlock and Lillian G. Rathbun, the trustees therein named.
The said Harry A. Morlock and Lillian G. Rathbun were, at their request, discharged as trustees under the will by a judgment of the Atlantic County Court, Probate Division, dated December 1, 1950, and the Boardwalk National Bank of Atlantic City, the plaintiff herein, was thereby appointed substituted trustee thereunder and letters of substituted trusteeship were issued to it by the Atlantic County Surrogate's Court.
The pertinent portions of the testator's will are as follows:
"THIRD: All the rest, residue and remainder of my estate, real, personal and mixed, of whatsoever kind and wheresoever situate at the time of my decease, I give, devise and bequeath unto my Trustees hereinafter named, upon the following terms of trust: * * *
(b) To expend the net income therefrom, or so much thereof as, in the discretion of my Trustees, may be necessary for the support, maintenance, welfare and/or benefit of my wife, MARGARET MORLOCK, so long as she shall live, * * *.
FOURTH: My primary concern is to provide for the support, maintenance, welfare and/or benefit of my wife, during her lifetime and if my Trustees shall deem it proper or necessary to use principal for such purpose or purposes, I authorize them so to do and expressly relieve them from liability by reason of so doing. Any receipt or evidence of the application of principal to her benefit,
made in conformity with this provision of my will, shall fully discharge my Trustees from liability to the extent of such payment or payments. * * *
SIXTH: I direct that my Executors and Trustees, in their discretion, but with the special limitations herein delegating certain duties to a designated fiduciary, shall have and possess the following powers, without liability in case of depreciation or loss and without being confined to what are known as legal investments for trust funds:
(a) To retain for such time as my son, HARRY A. MORLOCK. alone, may deem advisable, all investments, whether legal or not, that I may possess at the time of my decease.
(b) To re-invest in such common and/or preferred stock, or other investments, whether they are what are legal investments or not, as my son HARRY A. MORLOCK, alone, may deem ...