Julius S. Rippel died on December 9, 1950. By his will dated March 31, 1950, he appointed his nephew, Julius A. Rippel, and The National State Bank of Newark, executors and trustees to serve without bond. They have qualified and have undertaken the administration of the estate.
The will provided for the organization of a charitable foundation in memory of his wife, Fannie E. Rippel, and designated it the residuary beneficiary. The 35th article provided, inter alia , as follows:
"THIRTY-FIFTH: All the rest, residue and remainder of my estate, both real and personal, of whatsoever kind and nature and wheresoever situate, of which I may die seized or possessed, or to which I may be entitled at the time of my death, hereinafter referred to as my Trust Estate, I give, devise and bequeath to my Executors, hereinafter named, and the survivor of them, in trust, nevertheless, for the following uses and purposes:
(a) I direct and instruct my said Executors together with such of the following persons as may survive me and be willing to act, namely, FRANK C. FERGUSON, FRANK H. SOMMER and FRED G. STICKEL, Jr., and also together with such other person or persons my said Executors may desire to associate with them as soon after my decease as is practicable to incorporate or cause to be incorporated under Title 15 of the Revised Statutes of New Jersey, a corporation not for pecuniary profit to be operated exclusively for charitable purposes, to be known as 'FANNIE E. RIPPEL FOUNDATION' in memory of my wife.
(c) I leave to the uncontrolled discretion of the incorporators and trustees of the Foundation the details of organization, maintenance and operation of the Foundation together with the adoption of bylaws, rules and regulations concerning the conduct of the Foundation.
(e) It is my request that FRANK C. FERGUSON, FRANK H. SOMMER, JULIUS A. RIPPEL and FRED G. STICKEL, Jr., be members and trustees of the said Foundation and that they act as such trustees for at least the first year of existence of the Foundation and so long thereafter as they shall be elected and may be willing to serve. I further desire that the charter of said Foundation shall provide that the members of the Foundation shall also be the trustees thereof, but the number of members and trustees I leave to the discretion
of the incorporators so long as the number shall be not less than three. * * *"
The executors by letter dated August 31, 1951, called a meeting for the purpose of discussing the incorporation of the foundation and advised Messrs. Ferguson, Sommer and Stickel as follows:
"Pursuant to the provisions of Paragraph 35 (a) of the last will and testament of Julius S. Rippel, deceased, we the undersigned executors of said will have decided to associate with us and you as incorporators of the Fannie E. Rippel Foundation, Messrs. L. J. MacGregor, Craig S. Bartlett, I. C. Raymond Atkin and Dr. John F. Sly."
In reply, Messrs. Ferguson, Sommer and Stickel advised the executors that they planned to attend the conference,
"but herewith protest against the participation in such conference of the named persons whom you have chosen to associate with you as proposed incorporators of the proposed Foundation. There being five incorporators available, the four persons named by the decedent as Trustees and the Corporate Executor, to act as Incorporators and such number being sufficient in law to incorporate, no need exists for ...