This suit is brought by the plaintiff, the National Newark and Essex Banking Company of Newark, as trustee under the last will and testament of Nellie Bond Osborne, deceased, seeking permission of this court to invest the corpus of the trust in securities as are now and from time to time may be designated as legal for fiduciaries under the statutes of this State.
Testatrix died on January 28, 1922, leaving a last will and testament and codicil thereto admitted to probate by the Surrogate of Essex County on February 10, 1922. The Bank of Montclair qualified as executor and trustee, and completed its duties as executor and continued to act as
trustee until June 30, 1950, when the Bank of Montclair was voluntarily dissolved. On September 5, 1950, the National Newark and Essex Banking Company of Newark was by order appointed substituted trustee under said will and codicil and qualified as such, and has since administered the trust.
When the decedent died in 1922, she had been a widow for only two or three years and had but recently lost her only child, Harold B. Osborne. The said Harold B. Osborne left his widow, Vera Grace Osborne, and daughter, Mary Bailey Osborne (now Mary Bailey Osborne Waite), both of whom survived the decedent and both of whom were the objects of the decedent's bounty.
The residuary estate, under the provisions of paragraph Thirteenth of the will, was devised and bequeathed to the Bank of Montclair, in trust, with directions to pay one-half the net income therefrom, but not exceeding the sum of $250 per month, to Vera Grace Osborne, testatrix' daughter-in-law, so long as she lived and remained the widow of the son, Harold Bond Osborne, and to use the balance of said income or any portion thereof as might be necessary for the "comfort, support and education" of Mary Bailey Osborne, testatrix' granddaughter, during her minority. Any unexpended balance of income was to be added to principal. When the said Mary Bailey Osborne attained the age of 21 years, the entire income of the trust was to be paid to her for and during her life, with the exception of such portion thereof as was payable to Vera Grace Osborne.
Upon the death of Mary Bailey Osborne, and if Vera Grace Osborne had theretofore remarried or died, the trust was to terminate and the principal and any accumulated income was to be divided equally between the surviving children and the surviving issue of any deceased children of Mary Bailey Osborne, per stirpes. If, on the other hand, Vera Grace Osborne had not remarried or died, only one-half of the corpus was to be distributed to the aforesaid remaindermen, the remaining one-half to be distributed on the remarriage
or death of Vera Grace Osborne. In the event that Mary Bailey Osborne should die leaving no issue surviving, then upon her death and the remarriage or death of Vera Grace Osborne, the corpus and accumulated income was to be divided into 11 shares and distributed as in the will provided.
By the terms of paragraph 10 of the codicil to her will, insofar as is here pertinent, testatrix increased the maximum amount of income payable to her daughter-in-law, Vera Grace Osborne, to $400 per month instead of $250 per month. In addition, testatrix directed that out of the income of the trust there should be paid $10 per month to Emma Julia Osborne for and during her natural life. Testatrix further directed that the trustees also set aside out of the income the sum of $100 per year, "to be used for purchasing two gifts for my granddaughter, Mary Bailey Osborne, one to be given to her at her birthday and one at Christmas * * * with a message each time that the gift is a reminder of the love of her father and her grandmother."
Testatrix was survived by both her daughter-in-law, Vera Grace Osborne, and her granddaughter, Mary Bailey Osborne. Vera Grace Osborne is still alive and has not remarried. Mary Bailey Osborne is still alive and has since attained the age of 21 years and is married to one Charles M. Waite, and is the mother of two children, Pamela Osborne Waite and Charles M. Waite, Jr., both minors. Emma Julia Osborne has since died.
Under the provisions of sub-paragraph 1 of paragraph Thirteenth of the will, not changed or modified by the codicil, the ...