Speakman, J.c.c. (temporarily assigned).
The plaintiff, executor and trustee of the estate of Marie A. Munn who died November 21, 1949, seeks a construction of her will and instructions concerning his duties thereunder to use the corpus of the estate for the benefit of the defendant Genevieve B. Whittemore, and instructions whether he should pay or litigate a federal estate tax deficiency assessment. Alternatively, he seeks the same relief under the Declaratory Judgments Act.
Defendant, The Community Chest of the Oranges and Maplewood, one of the remaindermen, joins the plaintiff in his requests. Defendant, The Hospital Center at Orange, the other remainderman, asserts that it is not proper or permissible for the plaintiff to use any of the corpus for the benefit of said Genevieve B. Whittemore. Defendant Genevieve B. Whittemore, the life tenant, asserts that she is entitled to have all of her expenses paid out of the trust income and principal without reference to her personal resources.
The evidence adduced at the trial establishes that at the time of her death the testatrix was a widow and her nearest relative was her sister, Genevieve B. Whittemore, then 74 years of age. The decedent and her sister were quite intimate, visiting back and forth frequently. During these visits the sisters, in the presence of Mrs. Whittemore's attorney, discussed their infirmities and the provisions each was making for the other in their respective wills.
The depositions of Mrs. Whittemore's physician, Dr. William H. Upson, and of her lawyer, Mr. Hugh Meade Alcorn, Jr., are to the effect that in 1947 Mrs. Whittemore's illness had progressed to the point where she required the attendance of a full-time nurse. She had obtained one in Catherine
Derrick who, under a codicil made by Mrs. Munn on May 2, 1949, receives a legacy of $1,000 provided she is still in the employ of Mrs. Whittemore at the time of Mrs. Whittemore's death. Prior to the employment of this full-time nurse, Mrs. Whittemore was able to manage with a housekeeper, a gardener, and a cleaning woman. In addition to these expenses Mrs. Whittemore in 1947 required extensive medical care and the use of drugs and medicines. Mrs. Whittemore had an estate then of approximately $275,000 from which she derived an annual income of $13,000. Her nursing and medical expenses were then and are now approximately $9,000 per year. With the advent of a full-time nurse in 1947 Mrs. Whittemore's income became insufficient to pay for all of her expenses, and to defray the cost thereof Mrs. Whittemore resorted to her own capital funds to meet the deficiency of income. The record is barren of any proof that Mrs. Munn in her lifetime gave financial assistance to her sister during the period when her sister's income was insufficient to pay all her expenses.
When Mrs. Munn died her sister was an invalid, practically bed-ridden. Her condition then was a natural progression of the infirmities that had beset her many years earlier, and her physician's estimate of her life expectancy was then about two years. As of September 9, 1952, the date the doctor's deposition was taken, her life expectancy was two to three years.
All of the evidence indicates that Mrs. Whittemore's way of living since her sister's death is the same as her way of life for several years prior to Mrs. Munn's death. She still has a full-time nurse, a housekeeper, a gardener and the cleaning woman. In the winter she goes to the Hueblin Hotel in Hartford, Connecticut, 20 miles distant from her home in Suffield, where she rents an apartment and remains in it with her full-time nurse and with her regular doctor in attendance upon her needs.
The income from the estate is approximately $11,000 a year. Mrs. Whittemore's income from her private estate,
augmented by the trust income, is sufficient to maintain her adequately.
Mr. Alcorn's testimony reveals that Mrs. Whittemore's own estate at the time of her sister's death consisted of high-grade, marketable securities having a market value of approximately $275,000. In addition to these securities, she owns the farm at Suffield, Connecticut, which can be fairly described as a country estate. The income just about meets the expenses to run it. It has been assessed for real estate taxes at a value of $16,110, but is apparently worth somewhere between $40,000 and $48,000. Her illness has been of long standing, known to her and Mrs. Munn who also suffered from heart disease.
In article FIFTH of her will the testatrix gave the residue of her estate, after the usual expenses and certain bequests, to her executor and trustee in ...