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Leavy v. McDermott

Decided: July 7, 1952.

KATHARINE M. LEAVY, EXECUTRIX OF THE LAST WILL AND TESTAMENT OF WILLIAM JOSEPH LEAVY, DECEASED, PLAINTIFF,
v.
THERESA MCDERMOTT, WIDOW; BERNARD J. LEAVY AND CATHERINE M. LEAVY, HIS WIFE; WILLIAM P. BRADLEY, WIDOWER; WILLIAM P. BRADLEY, JR., AND MARIE JOHNSON, HEIRS AT LAW OF MARY P. BRADLEY, HIS DECEASED DAUGHTER, DEFENDANTS



On complaint for construction of will.

Ewart, J.s.c.

Ewart

[20 NJSuper Page 441] William Joseph Leavy died January 17, 1918, a resident of Perth Amboy, N.J., leaving a will duly admitted to probate by the Surrogate of Middlesex County on January 28, 1918, and leaving him surviving heirs at law and next of kin as follows, viz.: Louisa A. Leavy, his widow; Mary P. Bradley, a daughter; Theresa McDermott, a daughter; Katharine M. Leavy, a daughter; and Bernard J. Leavy, a son. Testator's widow, Louisa A. Leavy, died intestate December 8, 1951. His daughter, Mary P. Bradley, died intestate subsequent to the death of the testator and left her surviving her husband, William P. Bradley (now deceased) and two children, viz. , William P. Bradley, Jr. and Marie Johnson, both of whom are of full age. Of testator's family at the time of his death, his daughter, Theresa McDermott; his daughter, Katharine M. Leavy; his son, Bernard J.

Leavy; and two grandchildren, the children of Mary P. Bradley, deceased, viz. , William P. Bradley, Jr. and Marie Johnson, still survive.

Testator's daughter, Katharine M. Leavy, was appointed executrix of testator's will and brings this suit as such for the construction of the will.

This court, of course, has jurisdiction over the subject matter. Jurisdiction of the parties has been acquired, not by the service of process nor by formal appearances, but by a stipulation in writing, duly signed by all of the parties in interest and filed, setting forth the facts enumerated above and by which the parties "hereby unconditionally waive process and service of summons and complaint and any and all other papers of process and submit to the jurisdiction of this court for the purposes mentioned herein and in the complaint filed." Jurisdiction of the parties may be acquired by consent without the issuance or service of process and without the entry of formal appearances. In re Hall , 94 N.J. Eq. 108 (Ch. 1922); Kuestner v. Boscarell , 5 N.J. Misc. 303 at 310 (Sup. Ct. 1927); Shephard v. Phila. Record Co. , 24 N.J. Misc. 310 at 313 (Cir. Ct. 1946); Jackson and Sons v. Lumbermen's Mut. Cas. Co. , 86 N.H. 341, 168 A. 895 (N.H. Sup. Ct. 1933); and 14 Am. Jur., pages 380-381, sec. 184.

A copy of the will, stipulated to be a correct copy, is annexed to the complaint and marked Schedule A. The will is short. The first clause directs the payment of funeral expenses and debts; the third clause appoints testator's daughter Katharine as executrix without bond; the fifth clause revokes all prior wills; the sixth clause provides that should testator's wife predecease him, then his entire estate is to go to such of his children as shall survive him, share and share alike; and the second and fourth clauses read as follows:

"SECOND: I give, devise and bequeath all the rest, residue and remainder of my estate, both real and personal, of every manner, form and description, wherever situated, unto my beloved wife, Louisa A.

Leavy, absolutely and forever, to be used for her and by her for her benefit and the benefit of such of my children as shall survive me."

"FOURTH: Nothing in this my said last will and testament shall be taken or construed to mean that any or all of such of my children as shall survive me are in any manner disinherited."

The said stipulation further sets forth that since the death of the testator all of the parties have considered his widow, Louisa A. Leavy, as a life tenant in all of the property, both real and personal, of the testator and, in accordance therewith, during her lifetime she received the income from the same.

The universal rule applicable to the construction of wills is that the testator's intention, to be ascertained from a reading of the entire will in the light of the circumstances surrounding him at the time of execution, will govern and control the court in construing a will, in so far as such intention is not violative of any law or rule of public policy. The books are replete with authorities in support of that rule and no specific citation of authority is needed. However, the meaning and intention of the testator is to be ascertained and determined, not by fixing attention upon single words or phrases contained in his will, but by considering the entire will and surrounding circumstances and by ascribing to the testator, so ...


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