On appeal from the Chancery Division of the Superior Court.
For affirmance -- Justices Case, Heher, Oliphant, Wachenfeld and Ackerson. For reversal -- Chief Justice Vanderbilt, and Justice Burling. The opinion of the court was delivered by Heher, J.
[7 NJ Page 451] The object of this proceeding in equity is the construction of the will of Harry Goldfaden, who died January
31, 1947, leaving him surviving his widow, Rose, two adult children, Fred and Robert, and two minor children, Rosalyn and Raymond, then aged 16 years and 10 years, respectively.
The will was executed February 10, 1945. After making bequests of $2,000 to each of his adult children and the same amount and his household furniture to his widow, the testator by the fourth paragraph gave the residue to his son Robert, in trust for investment and the payment of the income for these purposes:
"a. for the support, maintenance and education of my son. Raymond Goldfaden, and my daughter, Rose Goldfaden, during their respective minorities.
b. to pay to my wife, Rose Goldfaden, for the maintenance of the home, for herself, and my children and for herself, for her personal use, the sum of Twenty ($20.00) Dollars weekly during the continuance of this trust.
c. I direct my trustee to pay to my wife in addition to the sum provided in b. above, the sum of ($15.00) Fifteen Dollars weekly for the support and maintenance of each of my two minor children, Raymond and Rose, with further power and authority to advance further sums if in the judgment of my trustee it shall be advisable."
Then came these provisions:
"5. Upon the arrival at the age of twenty-one (21) years of the younger of my said two minor children or upon the marriage of my said daughter, Rose Goldfaden, before reaching the age of twenty-one years, then I direct my trustee to divide said residue and remainder of my estate or the unexpended portion thereof among my four children, Robert, Fred, Raymond and Rose, in equal parts except, however, that the shares or parts of Robert and Fred shall be charged with the sums of $2,000 each on account of the bequests made to them in paragraphs 1 and 2 of this will, thereby maintaining an equality of interests in my estate of my four children. The parts payable to my two younger children are not to be charged with advances made on their account during their minority.
6. Should the income from my estate be insufficient to pay the sums required to be paid under the provisions of paragraph 4 of this will, I hereby authorize my trustee to use the principal of said trust estate for such payments with full authority to advance such further sums as in the judgment of my trustee it shall be advisable for the education of my two minor children.
8. In the event of the death of any of my children without leaving issue them surviving and before arriving at the age of twenty-one years, then the share of the child so dying shall go to the surviving brothers and sister, as the case may be, in equal parts. This latter provision is not to be controlled by the clause providing for the ...