[22 NJSuper Page 81] The plaintiffs Central Hanover Bank and Trust Company (now the Hanover Bank), and Duncan S. Ellsworth, as successor trustees under clause Twenty-fourth
of the last will and testament of Archibald A. Hutchinson, deceased, seek a construction of that clause and also a construction of clause Eighth of the will of Archibald A. Hutchinson, Jr. as the same is modified by the third and fourth codicils thereto.
Archibald A. Hutchinson, hereinafter referred to as Hutchinson, Sr., died January 19, 1922, leaving a will and codicil which were admitted to probate by the Surrogate of Bergen County on February 6, 1922. Victor K. McElheny, Jr., and Archibald A. Hutchinson, Jr., qualified as executors and trustees. McElheny died January 26, 1935, leaving Archibald A. Hutchinson, Jr., the son of the decedent, who is hereinafter referred to as Hutchinson, Jr., as sole surviving trustee. Upon the death of Hutchinson, Jr., the plaintiffs qualified as successor trustees under the will of Hutchinson, Sr.
The Twenty-fourth clause of Hutchinson, Sr.'s will is as follows:
"TWENTY-FOURTH: The other two one-quarter parts of my residuary estate (as defined in Clause TWENTY-THIRD) and any part of my estate which may fail to pass under the provisions of said Clause TWENTY-THIRD, I hereby give, devise and bequeath to my EXECUTORS, IN TRUST, for the following purposes, namely:"
Then, following provisions setting up a trust of a one-quarter share for the benefit of the testator's daughter Jane, the will proceeds as follows:
"If my said son ARCHIBALD survive me, as to the other of such two one-quarter parts, my EXECUTORS shall invest, reinvest and keep invested so much thereof as shall be personal property and collect the yield thereof, and receive the rents, issues and profits of so much thereof if any, as may be real property, until payment over of the principal as hereinafter directed, and after allowing for all lawful charges against income, shall pay the entire net income of said part to my son, ARCHIBALD, during his lifetime; and upon his death, the principal of said respective part shall be paid, and is hereby given, devised and bequeathed, to and among such one or more beneficiaries and in such amounts, absolutely or in trust, as my said son, ARCHIBALD, may duly direct by his last Will and Testament (whether executed by him after my death or during my lifetime), and in default of such testamentary direction or insofar as it shall
not extend or be effectual, to and among such of my said son's lawful issue, if any, as may be living upon my said son's death, per stirpes , absolutely; and in default also of such issue, said principal shall be added to the principal then being held in trust under the provisions of this Clause TWENTY-FOURTH for my daughter JANE, and if she, too, be no longer living at the time of my said son ARCHIBALD'S death, then the principle which had been held in trust during my said son's life shall pass to, and is hereby given, devised and bequeathed, to and among the lawful issue, if any, of my said daughter living at her said brother's death; per stirpes , absolutely.
If my said son ARCHIBALD do not survive me but leave issue me surviving, then the said one-quarter part is hereby given, devised and bequeathed, in equal portions, to and among his lawful issue, me surviving, per stirpes , absolutely.
If neither my said son ARCHIBALD nor any lawful issue of his, survive me, in such event said one-quarter part shall be added to the like one-quarter part hereinbefore bequeathed and devised to or for the benefit of my said daughter JANE or her lawful issue."
The fund over which Hutchinson, Jr. was given a power of appointment will be referred to hereafter as the Trust. Of the several gifts over of the principal of the Trust in default of an exercise of the power of appointment, the only one which could be effective is a gift to the issue per stirpes of the testator's daughter Jane, living at the time of the life tenant's death. The defendant Duncan S. Ellsworth is the only person who could take under this gift.
On December 14, 1945, Hutchinson, Jr., executed in duplicate an instrument clearly intended to be a partial release of the power of appointment given to him by his father's will. The release and the certificate of acknowledgment attached thereto are as follows:
"KNOW ALL MEN BY THESE PRESENTS, That
WHEREAS the Last Will and Testament of my father, ARCHIBALD A. HUTCHINSON, which was executed on August 15th, 1919, and, together with a certain Codicil, executed November 1st, 1920, was admitted to probate by the Surrogate's Court of the County of Bergen, State of New Jersey, on February 6th, 1922, grants to me power to dispose of the principal of a Trust created in Clause TWENTY-FOURTH of that Will among such one or more beneficiaries and in such amounts, absolutely or in trust, as I may duly direct by my own Last Will and Testament;
NOW, THEREFORE, I, the undersigned, ARCHIBALD A. HUTCHINSON, also known as ARCHIBALD A. HUTCHINSON, JR. and A. A. HUTCHINSON, bachelor, of and now residing at No. 334 Linden Avenue, City of Englewood, County of Bergen, State of New Jersey, DO HEREBY
RELEASE, RENOUNCE and WAIVE the right to exercise said power of appointment insofar and to the extent that it empowers me to dispose of the said property, or any part thereof, to or among any persons (including institutions) who are not within the following classes, to wit: --
(1) Descendants (other than myself) of my deceased father ARCHIBALD A. HUTCHINSON the creator of the power;
(2) The respective spouses (including my own, if any) of any such descendants of my deceased ...