Eastwood, Goldmann and Francis. The opinion of the court was delivered by Francis, J.c.c. (temporarily assigned).
The parties here sought a construction of the will of H. Myers Bogert in several particulars. The determination of the matter by the trial court was accepted by them except for one aspect thereof which is made the subject of this appeal. In addition, the corporate executor appeals from the counsel fee allowed to its attorneys.
H. Myers Bogert died testate on March 5, 1932. At the time of death it is undisputed that his two grandchildren, Christine Z. Bogert (now Alley) and Henry Myers Bogert, 2nd, were his only next of kin. Christine Bogert Alley is still alive; Henry Myers Bogert, 2nd, died testate on June 19, 1951, without issue, leaving his widow, Charlotte G. Bogert, surviving.
The eighth paragraph of the will in question disposed of the residuary estate by the creation of a certain trust. Except for the counsel fee issue the proper interpretation of that paragraph presents the sole problem before us. Specifically it provides, so far as pertinent, as follows:
"Eighth: All the rest, residue and remainder of my estate, real, personal or mixed, of which I may die seized, or to which I may be in any manner entitled, I give, devise and bequeath to my Trustee hereinafter named and to its successor or successors in trust, to divide my said estate into two equal parts or shares and to hold each of said equal parts or shares in trust as hereinafter provided, to wit:
(b) To hold the other said equal part or share and invest and reinvest the same, or the proceeds thereof (except as hereinafter provided) during the natural life of my grandson, Henry Myers Bogert, 2nd, and to collect the income and profits therefrom and pay the same to my said grandson quarterly during his life. Upon his death, I give and bequeath one-half of the principal of said part or share to such person or persons as he may by his Last Will and Testament appoint and designate, and the remaining one-half, or in case of his failure to make such appointment and designation as aforesaid, all of such part or share then remaining , in equal shares to the children of my said grandson; in case any of my said grandson's children shall predecease him leaving issue, such issue shall take the same share which such child would have received if such child had survived. At any time after my said grandson arrives at the age of thirty years, my Trustee hereinafter named, or its successor or successors shall, upon the written request of my said grandson, pay over to him a sum or sums out of the principal of said part or share not exceeding in the aggregate fifty per cent. of the principal of said part or share. In case of any such payment or payments, the receipt of my grandson shall absolutely acquit and discharge such Trustee from all liability therefor."
Clause (a) of this paragraph made precisely the same disposition in favor of the granddaughter, Christine Z. Bogert
Alley, except that the above italicized words "except as hereinafter provided" and "then remaining" were omitted, and except that no power to invade the corpus was given to her.
In his lifetime Henry Myers Bogert, 2nd, exercised his power to invade the corpus of the trust to the extent of 50% of the principal of his trust. By his will he appointed the "trust fund, or the part or share remaining" at his death to his wife.
The issues we are called upon to decide arise out of the invasion of the corpus and because of the death of Bogert, 2nd, without issue. Specifically the questions are:
(1) Since the corpus of his trust was invaded to the extent of one-half thereof, how much of the remainder passed to his wife by virtue of the testamentary appointment?
(2) If only a part of the remainder of the trust after the invasion passed by the appointment, what is the proper disposition of the other part?
The trial court concluded that under the terms of paragraph 8(b) of the will Bogert, 2nd, had both the power of invasion of the corpus to the extent of one-half thereof and the power of appointment of the other half, even though the exercise of the power in both respects exhausted the fund and left nothing to pass under the explicit direction that upon the death of Bogert, 2nd, "I give * * * the remaining one-half" of the fund "or in case of his failure to make such appointment ...