In this suit, the plaintiff John K.I. Walsh, substituted trustee under the will of William V. Hulse, deceased, seeks a judgment accelerating in favor of the remaindermen a testamentary trust which arose under the following provisions of the last will and testament of William V. Hulse:
"All the rest, residue and remainder of my estate I give, devise and bequeath unto my executors, hereinafter named; in trust, however, to invest the corpus thereof upon first bond and mortgage, upon real estate, worth at least double the amount of such mortgage or mortgages, the income thereof to accumulate in the hands of my executors and be reinvested until my son William H. Hulse, shall attain the age of twenty one years, and from and after that time I direct my said executors to pay the income derived from my said estate to my said son, William H. Hulse, annually, for and during the term of his natural life. Upon the death of my said son, William H. Hulse, I give devise and bequeath the corpus of my estate to the lawful issue of my said son, in equal shares, and in the event of my said son leaving no issue, living at the time of his death, I give and bequeath to my brother, John C. Hulse, the sum of five hundred dollars, and all the rest residue and remainder of my said estate to my sister Eliza C. Blandford."
The proofs at the trial established that the testator William V. Hulse died May 21, 1915 testate, leaving a will dated August 2, 1910 containing the residuary clause above quoted
and which will was duly probated before the Surrogate of Mercer County June 4, 1915. Of the persons named or referred to in the residuary clause, testator William V. Hulse left him surviving at the time of his death his son William H. Hulse, life tenant; his brother John C. Hulse, contingent beneficiary; and his sister Eliza C. Blandford, a contingent beneficiary. Testator's son William H. Hulse is still living, is 52 years of age, and is married and his wife is 47 years of age. William H. Hulse has two children living, viz. William Harlan Hulse and Melba Elizabeth Hulse Griffiths. William Harlan Hulse is married and had no children at the date of the hearing on November 10, 1952, but his wife expected the birth of a baby in about a month. Mrs. Griffiths is likewise married and has two children, both of tender years. Eliza C. Blandford, sister of the testator, died July 23, 1949 leaving a will which was duly admitted to probate and by the terms whereof her residuary estate is bequeathed to her daughters, Marian E. B. Smith and Elsie E. B. Smith. John Hulse, brother of the testator, is still living at the age of 85 years and is unmarried.
The lineal descendants now living of William H. Hulse, life tenant of the residuary estate of his father William V. Hulse, are: William Harlan Hulse, a son; Melba Elizabeth Hulse Griffiths, a daughter; Carol Griffiths, a granddaughter; and Judith Elizabeth Griffiths, a granddaughter.
The life tenant William H. Hulse, all of the lineal descendants of William H. Hulse, as well as John C. Hulse, brother of the testator, and the residuary legatees of Eliza C. Blandford have been made defendants in this suit.
John A. Waldron, Esquire, of Trenton, was appointed guardian ad litem for the infant defendants, Carol Griffiths and Judith Elizabeth Griffiths, and was also appointed guardian ad litem to represent possible unborn issue of William H. Hulse, the life tenant.
Defaults were entered against all of the defendants excepting only the two infant defendants for whom the guardian ad litem has filed an answer in which is set up two defenses
requiring consideration, viz. (1) that by the terms of the will of William V. Hulse, the gift over to the lawful issue of William H. Hulse constitutes a class gift; that the members of the class cannot be ascertained until the death of the life tenant; that the class is subject to being opened to admit after-born children; and that the court is without power to accelerate the remainder under the trust based on a release from the life tenant at this time because the individuals constituting the class entitled to the remainder after the death of the life tenant cannot be ascertained at this time; and (2) that the acceleration of the trust and distribution of the remainder at this time would negate the intentions of the testator as expressed in his will.
At the trial there was admitted in evidence an absolute general release given by William H. Hulse, life tenant, to Mr. Walsh, the substituted trustee, a copy whereof is annexed to the complaint filed in this cause. And William H. Hulse, the life tenant, testified that he was moved to give the release and support the request that the remainder of the trust be accelerated by the immediate payment of the corpus of the trust to his children by the circumstance that he personally is not in need of the income from the trust and that his son and daughter, both of whom are married and starting to raise families, would be greatly benefited could they receive the trust assets at this time.
In view of the foregoing facts and circumstances, is the plaintiff entitled to a judgment accelerating the distribution or payment of the corpus of the trust to William Harlan Hulse and Melba Elizabeth Hulse Griffiths, children of the life tenant William ...