On appeal from Superior Court, Chancery Division, whose opinion is reported in 18 N.J. Super. 101.
For affirmance -- Chief Justice Vanderbilt, and Justices Heher, Oliphant, Wachenfeld, Burling, Jacobs and Brennan. For reversal -- None. The opinion of the court was delivered by Burling, J.
[11 NJ Page 68] This is a civil action wherein the categories of relief sought include a construction of the will of Thomas J. Kavanagh, deceased, invalidating portions thereof, accounting, and determination of the respective interests of the several parties to the action. It was instituted by the filing of a complaint in the Superior Court, Chancery Division, on August 15, 1950, by the plaintiff Isabelle Litcher. The defendants named were the Trust Company of New Jersey, as substituted trustee under the last will and testament of Thomas J. Kavanagh, deceased; Emil W. A. Schumann, as executor of the last will and testament of Emily E. Kavanagh, deceased; Anna Menzer; Michael La Padula; Monsignor John L. McNulty, as President of Seton Hall College; Rev. Lawrence McGinley, as President of Fordham University; Martin Stanton, Director for New Jersey of "The Society for the Propagation of the Faith"; and Theodore D. Parsons, as Attorney-General of the State of New Jersey. By counterclaim and cross-claim of the defendant Michael La Padula, and by the plaintiff's answer thereto, La Padula and the plaintiff effectively aligned themselves
as the moving parties in the proceedings, against the other defendants. The Superior Court, Chancery Division, rendered a judgment against these moving parties on April 14, 1952 and they jointly appealed therefrom to the Superior Court, Appellate Division. Prior to hearing there, we allowed certification upon our own motion.
Thomas J. Kavanagh, whose will is the principal source of this litigation, died a resident of the County of Hudson in this State on February 23, 1948, unmarried and without issue. His will was admitted to probate in the former Prerogative Court on March 28, 1938 and letters testamentary were thereon issued to the New Jersey Title Guarantee & Trust Company, executor. On or about June 9, 1939 the defendant Trust Company of New Jersey was appointed substituted trustee under the will of Thomas J. Kavanagh, deceased.
It appears to be uncontroverted that the testator was survived by one brother, Harry W. Kavanagh, and three sisters, Isabella T. (Mrs. Michael La Padula), Emily E., and Anna Matilda (Mrs. William Menzer), and that Henry M. Kavanagh, testator's father, predeceased him. It also appears to be uncontroverted that the brother Harry W. Kavanagh died in Jersey City, New Jersey, in 1942; that testator's sister Emily E. Kavanagh died in Jersey City, New Jersey, on February 28, 1949, testate, unmarried and without issue; that testator's sister Isabella T. Kavanagh La Padula died in Nassau County, New York, on or about February 3, 1948. It is stipulated that testator's sister Anna Matilda Menzer died on July 10, 1952 during the pendency of this appeal. The plaintiff Isabelle Litcher and the defendant Michael La Padula assert that they are entitled to maintain these proceedings by virtue of their respective interests in the estate of or their respective relationship to one or more of the now deceased brother and sisters of the testator.
This action was instituted by Isabelle Litcher by the filing of a complaint in the Superior Court, Chancery Division, on August 15, 1950 against the defendants hereinbefore named.
As recited above, she and the defendant Michael La Padula by various pleadings in effect joined together in the proceedings against the other defendants. The majority of the defendants answered, denying the allegations of the moving parties and leaving them to proof, except for the defendant trustee and the defendant Rev. McGinley, President of Fordham University, who admitted certain of the factual allegations. It does not appear that the defendant Anna Matilda Menzer (now deceased) and the defendant Attorney-General of the State of New Jersey answered or otherwise participated in the proceedings in the court below.
The specific relief sought by the moving parties included construction of the will of Thomas J. Kavanagh, deceased; declaration that he died intestate as to the income from his residuary estate, declaration that paragraphs Nineteenth and Twentieth of his will were void; direction that the trustee render its final account; and that the court determine and adjudge the proportionate distribution to be made to the parties in interest in the testator's estate. The record indicates that the final hearing proceeded upon the premise that the determination of the matters of construction of the will of Thomas J. Kavanagh, deceased, would be dispositive of the action. After final hearing the Superior Court, Chancery Division, entered final judgment construing the will in a manner opposed to the contentions of the moving parties, denying all of the incidental relief sought by them, making various allowances of counsel fees to the respective parties to be paid from the corpus of the testator's residuary estate, but ordering that the taxed costs be paid by the plaintiff and the defendant La Padula. The plaintiff and said defendant appealed from the whole of said judgment. For convenience during the course of the remainder of this opinion the plaintiff and the defendant La Padula will be adverted to as the appellants; unless otherwise noted, the other parties to the appeal will be referred to as the respondents.
The principal questions involved on this appeal are: (1) whether paragraphs Nineteenth and Twentieth of the testator's will are void (a) by reason of delegation of testamentary power, (b) violation of the rule against perpetuities, or (c) indefiniteness; and (2) whether the testator died intestate as to surplus income earned on the residuary estate. The remaining questions involved are directed chiefly to the portion of the judgment ordering the appellants to pay taxed costs and to the quantum of allowance of counsel fee to the appellants.
Thomas J. Kavanagh's will was holographic. It was made by him on June 3, 1927, apparently without legal assistance. In order to express in understandable vein our conclusions on the principal issues of this case it is incumbent upon us to recite more at length than is our wont the testamentary scheme effected by him. In paragraph First he ordered the payment of debts, funeral expenses and all other testamentary expenses; paragraphs Second to Ninth, inclusive, contained specific bequests of money or of personal effects and jewelry to various designated charities and members of his family. Paragraphs Tenth to Twentieth, inclusive, dispose of the testator's residuary estate as follows:
"TENTH: After all the above named legacies have been paid and settled, I give and bequeath all of the balance, residue and remainder of my estate, to my Executors and Trustees or both, to have and to hold the same in trust for the following uses and purposes.
ELEVENTH: Out of the income of my estate, I order that the sum of One Hundred (100) Dollars per month, be paid unto my father, either monthly or quarterly as he may decide, during his lifetime, for him to use as he may decide for his personal pleasure and comforts.
TWELFTH: To my sister, Mrs. Michael LaPadula (Isabella T. Kavanagh) as she now being married and provided for, I bequeath the sum of Nine Hundred (900) Dollars per year, not to exceed Twenty Years, for her personal use and comfort.
THIRTEENTH: To my sister Mrs. William Menzer (Anna Matilda Kavanagh) being that she is married and provided for, I bequeath the sum of Nine Hundred (900) Dollars per year, for a period not to exceed Twenty Years for her personal use and comfort.
FOURTEENTH: To my sister Emily E. Kavanagh I order and bequeath that the sum of Fifteen hundred (1500) Dollars a year be
paid to her during her life, provided she does not marry if she does then her share is to be identical in every respect from the date of her marriage, as her other two sisters mentioned in paragraphs Twelve and Thirteenth, and in order that this is clearly understood the years before marriage are to be deducted from the twenty years, in other words -- if she has been receiving her yearly equity for 5 yrs. before her marriage, the sum of Nine hundred (900) Dollars commences then and runs for only 15 yrs. longer, as I feel I must be fair, just and honest to them all.
FIFTEENTH: To my brother Harry W. Kavanagh I order and bequeath that the sum of Twelve hundred (1200) Dollars per year be paid to him in quarterly payments, for a period not to exceed twenty years, for him to use for his personal comfort and pleasure as he himself may decide.
SIXTEENTH: In making all of the above bequests and legacies, I do so with the best interest at heart toward all, and after a careful study, planning, and reviewing, and without any less feeling of love and devotion toward one more than another.
By limiting the time it remains in force, I feel that they are all well fixed in life, and this money set aside by them yearly and invested will be and provide for them later in life, unless through some ...