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Hackensack Trust Co. v. Bogert

Decided: April 17, 1952.

THE HACKENSACK TRUST COMPANY, AS TESTAMENTARY TRUSTEE UNDER THE LAST WILL AND TESTAMENT OF H. MYERS BOGERT, DECEASED, PLAINTIFF,
v.
CHARLOTTE G. BOGERT, INDIVIDUALLY AND AS EXECUTRIX OF THE LAST WILL AND TESTAMENT OF HENRY MYERS BOGERT, 2D, DECEASED; CHRISTINE B. ALLEY, ROGER BLACKSTONE ALLEY; ROGER BLACKSTONE ALLEY, JR.; AND HACKENSACK HOSPITAL ASSOCIATION, A BODY CORPORATE, DEFENDANTS



Grimshaw, J.s.c.

Grimshaw

Plaintiff, as trustee under the last will and testament of H. Myers Bogert, deceased, seeks a construction of the will of the decedent and a determination of the rights and interests of the various defendants in the corpus of the trust fund created by the will for the benefit of H. Myers Bogert, 2d.

H. Myers Bogert died March 5, 1932, leaving him surviving as his only next-of-kin, his grandchildren, H. Myers Bogert, 2d, and Christine Bogert. H. Myers Bogert, 2d, died without issue on June 19, 1951. In his will, admitted to probate in Pike County, Pennsylvania, on June 28, 1951, his widow, Charlotte G. Bogert, was named as his sole beneficiary. Christine Bogert, the other grandchild, is married to Roger B. Alley. They have one son, Roger B. Alley, Jr., a minor.

The pertinent provisions of the will of H. Myers Bogert are as follows:

"FIFTH: I order and direct my executor to set aside and hold in trust and invest and reinvest the sum of TWENTY THOUSAND ($20,000.00) DOLLARS and to pay the net income therefrom to my daughter-in-law, ELIZABETH Z. BOGERT during her life. Upon her death said principal sum shall become a part of my residuary estate and be disposed of as is hereinafter provided."

"SEVENTH: I order and direct my executor to set aside and hold in trust and invest and reinvest the sum of TEN THOUSAND ($10,000.00) DOLLARS and to pay the net income therefrom to my niece EDITH M. BOGERT during her life. Upon her death said principal sum shall become a part of my residuary estate and be disposed of as hereinafter provided.

EIGHTH: All the rest, residue and remainder of my estate, real, personal or mixed, of which I may die seized or to which I may be in any manner entitled, I give, devise and bequeath to my Trustee hereinafter named and to its successor or successors, IN TRUST, to divide my said estate into two equal parts or shares and to hold each of said equal parts or shares IN TRUST as hereinafter provided, to wit:

(a) To hold one of said equal parts or shares and invest and reinvest the same, or the proceeds thereof, during the natural life of

my granddaughter, CHRISTINE Z. BOGERT, and to collect the income and profits therefrom and to pay the same to my said granddaughter quarterly during her life. Upon her death, I give and bequeath one-half of the principal of said part or share to such person or persons as she may by her Last Will and Testament appoint and designate, and the remaining one-half, or in case of her failure to make such appointment and designation as aforesaid, all of such part or share, in equal shares to the children of my said grand-daughter; in case any of my said grand-daughter's children shall predecease her leaving issue, such issue shall take the same share which such child would have received if such child had survived.

(b) To hold the other said equal part or share and invest and reinvest the same, or the proceeds thereof (except as hereinafter provided) during the natural life of my grandson, HENRY MYERS BOGERT, 2ND, and to collect the income and profits therefrom and pay the same to my said grandson quarterly during his life. Upon his death, I give and bequeath one-half of the principal of said part or share to such person or persons as he may by his Last Will and Testament appoint and designate, and the remaining one-half or in case of his failure to make such appointment and designation as aforesaid, all of such part or share then remaining, in equal shares to the children of my said grandson; in case any of my said grandson's children shall predecease him leaving issue, such issue shall take the same share which such child would have received if such child had survived. At any time after my said grandson arrives at the age of thirty years, my Trustee hereinafter named, or its successor or successors shall, upon the written request of my said grandson, pay over to him a sum or sums out of the principal of said part or share, not exceeding in the aggregate fifty per cent of the principal of said part or share. In case of any such payment or payments, the receipt of my grandson shall absolutely acquit and discharge such Trustee from all liability therefor.

NINTH: In case either my said granddaughter or grandson should predecease me leaving a child or children or issue thereof surviving, the part or share hereinbefore directed to be held for the benefit of such grandchild, I give and bequeath to such child or children.

TENTH: In case of the death of either of my said grandchildren before me without leaving child or children or issue thereof surviving, the part or share hereinbefore directed to be held for the benefit of such grandchild, or the portion thereof not disposed of by such grandchild in the manner hereinbefore provided, shall be added to and become a part of the part or share directed to be held for the surviving grandchild, his or her child, children or issue. In case both of my said grandchildren should die without either leaving a child or children or issue them surviving, then and in that case, I give, devise and bequeath all of the residue and remainder of my said estate, except such part thereof as may have been disposed of under the power of appointment herein given to my said grandchildren, to the HACKENSACK HOSPITAL ASSOCIATION, to be used by it either for the erection of new hospital buildings, or extensions to the

then existing hospital building and/or the furnishing thereof; until the principal shall be so expended any income therefrom may be used for the maintenance and support of the hospital or hospitals owned or operated by the said HACKENSACK HOSPITAL ASSOCIATION. Nothing herein shall require the use of my said estate for the purposes aforesaid, but the same may be held indefinitely and the income therefrom used and applied for the maintenance and support of the hospital or hospitals owned or operated by said Association.

ELEVENTH: The gifts to the children or issue of my said grandchildren shall vest at the death of such grandchild, but the principal thereof shall not be paid over until each of the several persons entitled thereto shall arrive at the age of twenty-one years; in case of the death of any such persons before reaching the age of twenty-one years, then the share of those so dying shall be paid over to the persons entitled thereto at the expiration of twenty-one years after the death of the grandchild of whom they are descendants. The net income on such shares shall be paid over annually, or oftener in the discretion of the Trustee, to the persons entitled thereto. In case for any reason, the foregoing provisions should be held to violate the law of perpetuities, the said shares shall be ...


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