In this action the plaintiff seeks a judgment declaring void the nineteenth and twentieth paragraphs of the will of Thomas J. Kavanagh, deceased. Also sought is a judgment determining the proportionate shares of the residuary principal and income of the estate to which the several parties will be entitled in the event that the residuary provision of the will is held to be invalid.
Kavanagh died on February 23, 1938, unmarried and without issue. His will was admitted to probate by the
Prerogative Court on March 28, 1938. The New Jersey Title Guarantee & Trust Company was named as executor and trustee. On June 9, 1939, that bank was taken over by the then Department of Banking and Insurance, and the defendant Trust Company of New Jersey was appointed substituted trustee.
The decedent left him surviving a brother, Harry W. Kavanagh, and three sisters, Isabella T. Kavanagh LaPadula, wife of the defendant Michael LaPadula, Emily E. Kavanagh and Anna Matilda Kavanagh Menzer, also a defendant. Henry W. Kavanagh died in 1942, intestate, unmarried and without issue. Isabella T. Kavanagh LaPadula died in 1948, intestate, without issue, and survived by her husband, Michael LaPadula, and her two sisters, Emily E. Kavanagh and Anna Matilda Kavanagh Menzer. Emily E. Kavanagh died in 1949, unmarried, leaving a will under the terms of which the major portion of her estate was left to her niece, Isabelle Litcher, the plaintiff in this action, who is the wife of Steven John Litcher. Anna Matilda Kavanagh Menzer is still living.
The paragraphs of the will with which we are concerned are as follows:
After all the above named legacies have been paid and settled, I give and bequeath all of the balance, residue and remainder of my estate, to my Executors and Trustees or both, to have and to hold the same in trust for the following uses and purposes,
Out of the Income of my estate, I order that the sum of One hundred (100) Dollars per month, be paid unto my father, either monthly or quarterly as he may decide, during his lifetime, for him to use as he may decide for his personal pleasure and comforts.
To my sister Mrs. Michael LaPadula (Isabella T. Kavanagh) as she now being married and provided for, I bequeath the sum of Nine hundred (900) Dollars per year, not to exceed Twenty Years, for her personal use and comfort.
To my sister Mrs. William Menzer (Anna Matilda Kavanagh) being that she is married and provided for, I bequeath the sum of
Nine hundred (900) Dollars per year, for a period not to exceed Twenty years for her personal use and comfort.
To my sister Emily E. Kavanagh I order and bequeath, that the sum of Fifteen hundred (1500) Dollars a year be paid to her during her life, provided she does not marry, if she does then her share is to be identical in every respect from the date of her marriage, as her other two sisters mentioned in paragraphs Twelve and thirteenth, and in order that this is clearly understood, the years before marriage are to be deducted from the twenty years, in other words, if she has been receiving her yearly equity for 5 yrs before her marriage, the sum of Nine hundred (900) Dollars commences then & runs for only 15 yrs longer, as I feel I must be fair, just and honest to them all.
To my brother, Harry W. Kavanagh I order & bequeath that the sum of Twelve hundred (1200) Dollars per year be paid to him in quarterly payments, for a period not to exceed twenty years, for him to use for his ...