[20 NJSuper Page 545] This is an action to construe Article Sixth of the will of Philip C. Walsh, Jr., executed January
19, 1916, and on his death, October 28, 1922, admitted to probate November 10, 1922. The plaintiff is the surviving executor and trustee, its co-fiduciary, William H. Walsh, surviving brother of the testator, qualified and continued in office until his death September 12, 1932.
The pertinent portion of the will is as follows:
"SIXTH: All the rest of my estate, real and personal I give, devise and bequeath to my executors upon the following trusts:
(a). Out of the income therefrom, to pay all taxes assessed against any of the property of said estate and against any property belonging to my wife, Mary E. Walsh, to pay all insurance premiums, and make repairs to buildings and generally to maintain any real estate belonging to my estate or belonging to my said wife.
(b). To pay the remainder of the net income to my said wife, Mary E. Walsh, for her life, for the support of herself and our children in monthly installments, with authority to resort to the principal of my estate if the income be insufficient; provided however, that by said resort to principal the yearly payment to my wife shall not be made to exceed twenty-five hundred dollars ($2,500.00). I do not intend to limit my wife to $2,500.00 if the net income available for her and her family shall be greater than that amount, but I mean that if resort to the principal is necessary, it shall only be to such extent as is necessary to swell the net annual income to the sum of $2,500.00. I direct that my said wife be not required to make any accounting of the expenditure of money received by her from the estate under this provision, and that my executors shall be under no responsibility for the use and application of said money by my said wife; provided however, that if my wife shall re-marry, my executors shall supervise the expenditure of said income either through my wife or by taking it into their own hands, and may limit the amount of income to be paid to my wife or expended by them. It being my will that my executors shall determine how much of said income shall be used and how it shall be used in the interests of my said wife and our children.
(c). It is my wish that my sons and daughters shall all receive a good education, and to that end I direct that my executors apply so much of the income from my estate as may be available for that purpose after the reasonable support of my wife and children, and the maintenance of the home for them, to procuring for my sons a college education and for my daughters a boarding school, convent or college course. If any one of my children shall wish additional education to train him or her for some profession or pursuit, and my executors shall approve such plan, I authorize them to pay for such technical or professional instruction, not exceeding for each one of said children the sum of Three thousand dollars ($3,000.00), and the amount so expended for either child, (for technical or professional
instruction additional to the collegiate etc. course referred to) to be charged to the share of said child in the division of my estate.
(d). If either of my sons shall marry after reaching the age of twenty-five, and shall leave the family home, or if either of my daughters shall marry after reaching the age of twenty-one, and shall leave the family home, I direct that such son or daughter be thereafter paid the sum of Five hundred dollars ($500.00) a year out of the net income of my estate; subject to the power herein given my executors, in case of the re-marriage of my said wife, to determine and limit the amount of income to be paid to my wife or expended for the benefit of my wife and children, I direct that at no time shall the payment of net income to my wife be reduced by such payments to my children on marriage to less than Fifteen hundred dollars, ($1,500.00) a year, and if said income shall be insufficient to pay my said wife $1,500.00 and the married children who have left home $500.00 a year each, said payments of $500.00 to said children are to abate equally.
(e). Upon the death of my wife, I direct that my estate be divided into as many shares as the number of my children, the child or children of any deceased child to take the share his or her parent would have been entitled to if living. If at the time of the death of my wife any of my said children shall have reached the age of thirty years, I direct the executors to pay over to said child his or her share, and thereafter as each child reaches thirty years to pay over his or her share. The share of any deceased child who left child or children may be paid over by my executors at any time between the death of my wife and the date when the youngest child reaches the age of thirty, as may be most for the convenience of my estate. If however, all my children shall marry before the death of my wife, I direct that my estate be divided as herein directed, without waiting for any child to reach the age of thirty, first setting apart however, enough to assure a net annual income of $1,500.00 a year to my wife, unless my wife shall then be married, in which case my executors are to take into consideration her circumstances and need of support, and if they decide that she can get along comfortably with less than the $1,500.00 above spoken of, they are to set apart such sum as will insure a net annual income of the amount less than $1,500.00 so decided by them to be sufficient for her comfortable support. The corpus thus set apart for her to be divided after my wife's death."
At the date of the will testator was the husband of Mary E. Walsh, and there were four children of the marriage, Philip C. Walsh III, William J. Walsh, Mary Walsh and Ann L. Walsh, all then minors. All of these still survive except Philip C. Walsh III, who died July 30, ...