On appeal from the Superior Court, Chancery Division, whose opinion is published in 19 N.J. Super. 424.
Eastwood, Goldmann and Francis. The opinion of the court was delivered by Francis, J.c.c. (temporarily assigned).
This action was brought to construe the will of Julius S. Rippel who died on December 9, 1950, a resident of Newark, New Jersey. Two of the respondents, Julius A. Rippel and the National State Bank of Newark, are the duly qualified executors of the estate.
Among other things the will directed that a corporate charitable foundation be created and that the residue of the testator's large estate be turned over to it for administration in accordance with certain express purposes.
The intervention of the court was sought because of a controversy arising out of the 35th article of the will under which the foundation is established. This article, so far as pertinent, provides 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. The Foundation shall have authority among other powers as may be conferred upon it to take and hold property absolutely and/or in trust, and administer, invest and reinvest the same and to devote the income therefrom as well as principal thereof, if need be, to the following objects and purposes of the Foundation:
(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. I further desire that the charter of the Foundation shall provide that in the event of the death, resignation or inability to serve of any of the members or trustees of the Foundation, the members or trustees then in office shall have the power to appoint or elect a successor."
On August 31, 1951 the executors notified Messrs. Ferguson, Stickel, and Dean Sommer that pursuant to paragraph 35 (a) they had decided to have five additional persons, whom they named, associated with them as incorporators of the foundation. Ferguson, Stickel, and Sommer objected, claiming that since five incorporators were available, namely, themselves and the executors, and since such number were sufficient under the statute (R.S. 15:1-1), there was neither need nor power to add additional persons.
Thereafter the executors caused a certificate of incorporation of the foundation to be prepared for signature by nine incorporators, that is, Ferguson, Stickel and Sommer, the individual executor, Julius A. Rippel, and the five persons chosen by the executors. The certificate likewise named these nine persons as the trustees for the first year of corporate existence. A meeting of the incorporators was then called for the purpose of forming the foundation and each was given a copy of the proposed charter for "consideration and comment."
Two days before the scheduled meeting Ferguson filed this action seeking an interpretation of the will and instructions to the executors. The executors, additional incorporators, Stickel and Sommer were named defendants. Primarily the relief sought was a declaration by the court, (1) that proper construction of article 35 (a) precluded the addition of further incorporators so long as the executors and Ferguson, Stickel and Sommer were willing and able to act, and (2) that in any event the ...