[18 NJSuper Page 317] The plaintiff, trustee under the last will and testament of J. Ackerman Coles, deceased, applies: (a) for instructions respecting the effect of a proposed consolidation of two eleemosynary corporations upon bequests to them as residuary beneficiaries; and (b) for direction to continue to rely upon four final decrees of the Court of Chancery and a judgment of this court entered in actions brought by charitable beneficiaries for permission to use their bequests for purposes other than those specified in the will, in which actions only the Attorney-General was defendant. Previously, instructions regarding other matters were given the plaintiff in Fidelity Union Trust Co. v. Ackerman , 121 N.J. Eq. 497 (Ch. 1937), modified 123 N.J. Eq. 556 (E. & A. 1938).
The decedent, a bachelor, died on December 16, 1925, a resident of Scotch Plains, Union County, New Jersey. His will, dated June 5, 1925, was duly admitted to probate. Article Seventh thereof devises and bequeaths the residuary estate to the plaintiff, in trust, to hold during the lifetimes of 12 first and second cousins of the decedent, referred to as the "twelve lives," six of whom are now living. Out of the net income, the plaintiff is directed to pay fixed annuities to a number of named persons, and, what is pertinent here, the balance of the net income is to be divided and distributed quarterly to the designated 12 lives "or such of them as may survive, and among the charities hereinafter named, or such of them as shall then be existent." Upon the death of the last of the "twelve lives," the corpus with its accumulations and all legacies which may lapse or otherwise fail, is to be divided into 19 equal shares to be distributed among 12 "charities named or such of them as shall then be existent." The same 12 charities are the beneficiaries of income and corpus; one receiving seven shares, another two shares, and the remaining ten, one share each.
Newark Orphan Asylum Association, the beneficiary of one share, was incorporated by special act of the Legislature approved February 9, 1849. In 1948 it combined with the Protestant Foster Home Society of the City of Newark, also created by special act approved February 28, 1849, and the merged organization is now known as the Newark Home for Foster Care. In 1949, the latter instituted an action in this court against the Attorney-General of New Jersey and obtained a judgment declaring its right to receive the income and corpus bequeathed to the Newark Orphan Asylum Association and permitting the use thereof not only for the purposes designated by the will, but also for furnishing foster home care.
The Newark Home for Foster Care and another beneficiary of one share, the Association to Provide and Maintain
a Home for the Friendless, on January 25, 1951, entered into an agreement to combine in accordance with the provisions of R.S. 15:1-17. The agreement is expressly contingent upon an adjudication by the court that the combined corporation shall be entitled to receive the legacies made to each of the combining corporations under decedent's will. Both associations are engaged in similar charitable work and the successor corporation will continue such activities under the name of "Newark Home for Foster Care."
The attorneys for the six survivors of the "twelve lives," who are entitled to share in the income but not in the corpus , contend that the Newark Orphan Asylum Association, by reason of its merger, is no longer "existent" within the intent and meaning of the Seventh Article of the will; that if the proposed consolidation of the Newark Home for Foster Care and the Association to Provide and Maintain a Home for the Friendless is effectuated, the latter corporation also will have ceased to exist; that both legacies fail; and that the doctrine of cy pres does not apply.
"Existent" is defined as "having being; existing; esp. at present." Webster's New International Dictionary (2 d ed.). "Existence" is "that which exists, that which actually is an individual thing; an actuality." 35 C.J.S., page 200. The testator placed the existence of a charity in the same category as the survival of an individual beneficiary, for he provided that the net income should be distributed among the "designated natural persons or such of them as may survive, and among the charities hereinafter named or such of them as shall then be existent." In a literal and technical sense, the phrase "as shall then be existent" referring to a corporation would require the corporation to be a distinct entity; to be alive. Hence, strictly speaking, when a corporation merges into another or if as the result of an amalgam between two corporations, a new one is formed, the components cannot be said to "be existent."
But I am convinced that the testator did not indulge in such finicky legalism. In the construction of a will, the
polestar for the court's guidance is the testator's intention. A will purporting to establish a charitable trust is to be given liberal construction and legacies for the use of charity will not be declared void if they can, by any possibility, consistent with law, be held valid. The incontestable fact is that the testator's avowed and dominant purpose was that his property be devoted to a wide variety of charitable uses; viz. , the advancement of religion through foreign missions, the promotion of education, the care of orphans, homeless and crippled children -- all charitable trusts. Bianchi v. South Park Presbyterian Church , 123 N.J.L. 325 (E. & A. 1939); Wilber v. Owens , 2 N.J. 167 (1949); Restatement, Trusts, sec. 368-372.
Construing the will as it would seem the testator intended, a charity which merges into or consolidates with another does not cease to exist so as to cause the lapse of the legacy or devise, but the successor corporation is entitled to receive it for the same purposes and trusts as the beneficiary named in the will. The Legislature has expressly provided for the contingency which has now arisen. R.S. 15:1-19. The statute reads:
"The corporate entity of each corporation or association so combined shall be continued for the purpose of enabling it to receive any legacy or devise, made for its benefit and intended for its use and purposes, the same as though the combination had not been effected. The trustees of the corporation created by the combination shall, for that purpose, be the trustees of each corporation or association so combined. Immediately upon the receipt of any such legacy or devise, or the proceeds thereof, the title to such property shall vest in the corporation created by such combination, subject to any trust or other conditions imposed in relation thereto."
The defendants argue that this statute is inapplicable because it was enacted subsequent to the date of the execution of the will and the death of the testator. Nevertheless, the point is without merit, for under the facts of this case the statute does not deprive the individual defendants of any vested right. ...