McGeehan, Jayne and Wm. J. Brennan, Jr. The opinion of the court was delivered by McGeehan, S.j.a.d.
[18 NJSuper Page 396] Mrs. Grete Ebeling was a beneficiary named in the last will and testament of Elizabeth M. Laise, deceased. The Attorney-General of the United States, acting under the authority of the Trading with the Enemy Act, appropriated the interest of Grete Ebeling and her heirs in this estate. The validity of this appropriation is not in issue. The Attorney-General appeals from a judgment of distribution which was entered in the Bergen County Court on May 23, 1951.
Elizabeth M. Laise died testate, a resident of Bergen County, New Jersey. Her will, which was executed on February 10, 1943, was duly probated and letters testamentary were issued by the surrogate on January 25, 1944. By the ninth paragraph of the will, the residue of her estate was given to the executors, "in trust, to be converted into cash by them at such times as they think best, and to be divided by my executors into three (3) equal parts or portions." One part thereof was bequeathed to "Robert L. Clayton, and to his heirs and assigns forever"; one part to "Mrs. Imgard Killinger, my cousin, and to her heirs and assigns forever"; and the third part as follows:
"The remaining equal part, being one-third of my entire residuary estate, I hereby bequeath unto my mother, MRS. GRETE EBELING.
In the event of the death of my mother, Mrs. Grete Ebeling, prior to the distribution to her of her one-third equal part, I direct that her said part shall be divided into three (3) equal parts, and disposed of as follows: To ROBERT L. CLAYTON, one of said parts; to the MARY FISHER HOME, a charitable institution in Tenafly, Bergen County, New Jersey, one of said part -- the receipt of the Treasurer of the same for the time being shall be a sufficient discharge to my executors for such legacy; to ROBERT L. CLAYTON, the remaining one of said parts to be used by him for any charitable purpose which he sees fit."
Grete Ebeling died on November 4, 1946, and thus survived the probate of the will by more than two years and nine months. Prior to her death, and for several years thereafter, litigation was still pending which involved substantial claims made against the estate. One suit, which antedated the execution of the will and involved a claim against Elizabeth M. Laise of $13,000 and interest, arising out of a construction of the will of her deceased husband, was not determined until September, 1948. The final account in the Elizabeth M. Laise estate was not filed until November 8, 1950.
At the oral argument the appellant stated that he did not intend to argue, or rely upon, the nature of the bequest to
Grete Ebeling, because his argument would be that, regardless of the nature of the bequest, it was fully vested in Grete Ebeling when she survived the probate of the will by 18 months, the period provided by statute (R.S. 3:26-1, as amended L. 1943, c. 82, § 1, effective April 6, 1943). This statute, in pertinent part, provides:
"An executor or administrator with the will annexed of any will probated on or after the effective date hereof shall have eighteen months after probate within which to pay and satisfy legacies given by the will unless the will otherwise directs; provided, however , that legacies given by the will may be paid or satisfied prior to the expiration of said eighteen months' period unless the will otherwise directs."
The appellant's argument proceeds as follows. First, a gift to a beneficiary, with a gift over if the beneficiary dies prior to distribution, vests in the beneficiary at the termination of the statutory period for distribution, unless a contrary intent is clearly disclosed; second, no contrary intent is clearly disclosed; third, Grete Ebeling survived until after the termination of the statutory period for distribution; therefore, the gift was fully vested in her at the termination of the statutory period for distribution.
Of course, actual payment to Grete Ebeling of her share was not necessary. In Miller v. Colt , 32 N.J. Eq. 6 (Ch. 1880), unanimously affirmed O.B. 33 N.J. Eq. 362 (E. & A. 1880), there was a gift of a share of the residue to a named beneficiary and a gift over if he "dies before distribution." In Joseph v. Utitz , 34 N.J. Eq. 1 (Ch. 1881), there was a bequest to a named beneficiary and a gift over if she died "before receiving her bequest." And in Rusch v. Melosh , 133 N.J. Eq. 502 (Ch. 1943), affirmed O.B. by a divided court, 134 N.J. Eq. 409 (E. & A. 1944), there was a gift of a share of the residue to a named beneficiary and a gift over if she should "die prior to the distribution of my estate." In ...