This suit is brought for construction of the will of Andrew G. Vogt, deceased, and for accounting by the defendant Clarence S. Rummel as executor of the will of Julia A. Vogt, deceased, and individually, of the assets that came into his possession and into the possession of Julia A. Vogt from the estate of Andrew G. Vogt and for payment thereof to the plaintiff.
The accounting required to be rendered by the defendant must abide the determination of the legal issues raised in the pretrial order which are as follows: (a) the nature of the estate given to Julia A. Vogt by the will and codicil of Andrew G. Vogt; (b) is the plaintiff, individually or as substituted administrator c.t.a. of the will of Rachel A. Wallhauser, deceased, disqualified from maintaining this action by reason of the contentions of the defendant pertaining to laches, unclean hands, and the effect of exhibits D-3, D-4 and D-5?
Under (a) plaintiff contends that by the terms of the will and codicil of Andrew G. Vogt the estate given to Julia A. Vogt became divested upon the death of Julia A. Vogt in favor of Rachel A. Wallhauser, in the event of the testamentary incapacity at any time of said Julia A. Vogt, and that such testamentary incapacity having occurred the estate given to Julia A. Vogt by the will and codicil of Andrew G. Vogt was divested upon the death of Julia A. Vogt and became absolute in Rachel A. Wallhauser and ultimately became vested in the plaintiff, individually, and as substituted administrator c.t.a. of the will of Rachel A. Wallhauser.
Under (a) and (b) it is the defendant's position and contention that under the will and codicil of Andrew G. Vogt the estate given to Julia A. Vogt was absolute and not subject to divestment; that under the will and codicil of Andrew G. Vogt, the complaint sets forth no cause of action; that by virtue of exhibits D-3, D-4 and D-5, plaintiff in his
individual capacity as well as in his fiduciary capacity, accepted performance of said exhibits D-3 and D-4 in complete discharge of any rights he may have had individually or in his fiduciary capacity against the estate of Julia A. Vogt; that as a condition to seeking relief in this suit, plaintiff should have tendered into this court the assets received by him under the will of Julia A. Vogt that were formerly assets of the estate of Andrew G. Vogt for the benefit of all persons entitled thereto, and that his failure to make such tender constitutes inequitable conduct barring relief herein; that during the period after the death of Andrew G. Vogt the said Julia A. Vogt, on the assumption of absolute ownership of the assets of Andrew G. Vogt, and with the knowledge of plaintiff, in her lifetime disposed of some of the assets of Andrew G. Vogt to an extent unknown and unascertainable, and proof of transactions relating to the disposition of such assets, known to said Julia A. Vogt, Rachel A. Wallhauser, Henry J. F. Wallhauser and H. Andrew Wallhauser, is not available; that plaintiff at all times subsequent to the death of Andrew G. Vogt had notice of all facts set forth in the complaint herein and that by reason of the foregoing, plaintiff is guilty of laches and of unclean hands and is barred from the relief he claims.
As to these contentions of the defendant the plaintiff claims that he had no knowledge either of the provisions or of the legal effect of the provisions of the will of Andrew G. Vogt on the assets of Julia A. Vogt which she received from her husband until shortly before the institution of the present action, and that he did not know nor was informed at the time he went into possession of the premises known as 76-78 East Park Street, Newark, New Jersey, or when he executed exhibits D-3, D-4 and D-5, or at the time he received and took possession of any of the gifts given to him by the will of Julia A. Vogt, that any of the property that Julia A. Vogt attempted to dispose of by her will to the plaintiff in his individual capacity did not belong to her by reason of the terms of the will of Andrew G. Vogt, and that he acted without full knowledge of the facts and circumstances and
without consciousness of the effect that is presently ascribed to the exhibits D-3, D-4 and D-5 and acts done by the plaintiff individually in performance of the terms of such exhibits, and that he acted in ignorance of his rights under the will of Andrew G. Vogt and under mistake of the real nature and extent of his individual rights thereunder; that such exhibits do not purport to and do not settle plaintiff's claim as substituted administrator c.t.a. of the estate of Rachel A. Wallhauser, deceased, to the assets of Andrew G. Vogt nor plaintiff's individual claims under the will of Andrew G. Vogt, and that to the extent such agreements may include such claims, such agreements go beyond the intention of the parties thereto, are without consideration, and without knowledge by the plaintiff, individually, or as substituted administrator, that he had any claim under the will of Andrew G. Vogt or the extent and nature thereof; that his obligation to tender into court the assets received by him under the will of Julia A. Vogt which were formerly assets of the estate of Andrew G. Vogt for the benefit of all persons entitled thereto, depends upon the ultimate determination by the court of the legal issues, and that plaintiff is ready, willing and able to account for all assets received from the estate of Julia A. Vogt to the persons entitled thereto in the event the court determines that the estate of Julia A. Vogt under the will of Andrew G. Vogt terminated upon the death of Julia A. Vogt; that it was not until the death of Julia A. Vogt on January 14, 1948 that plaintiff became entitled to distribution of the assets of Andrew G. Vogt and that he did not know nor was informed until some time after June 27, 1951 of the nature or extent of his interest under the will of Andrew G. Vogt, and upon being advised of his interest, individually, and as substituted administrator as aforesaid, in the estate of Andrew G. Vogt, he acted promptly in the premises and brought this suit.
Andrew G. Vogt and Julia A. Vogt were husband and wife, Andrew G. Vogt died a resident of Monmouth County on November 15, 1934, leaving a last will and testament and codicil thereto which was duly admitted to probate. After
directing the payment of his debts and funeral expenses, Andrew G. Vogt bequeathed unto his sister, Rachel A. Wallhauser, sufficient of guaranteed mortgages, bonds, real estate mortgages and bonds accompanying the same, stocks and bonds in his possession to aggregate a par value of $60,000, irrespective of market value. If his sister predeceased the testator, the gift was to go to her husband, Doctor Henry J. F. Wallhauser. If both should predecease the testator, then the bequest was to go equally to testator's nephews, Doctor H. Andrew Wallhauser and George M. Wallhauser. A codicil made a little more than a year later confined the source of the gift to guaranteed mortgage bonds, but made no other change. The will then provided:
"Third. All and whatsoever the rest, residue and remainder of my estate, real, personal and mixed wheresoever located and found, I give, devise and bequeath unto my beloved wife, Julia A. Vogt, to her, her heirs, executors, administrators and assigns, forever, in fee simple absolute, with the following exception:
Inasmuch as I with my wife Julia A. Vogt often undertake periods of travel, and also that together or singly we come and go from place to place when occasion requires, by various means of transportation; and being aware of the possibility of our coincident death from casualty, or of testamentary incapacity in either or both of us arising at any time, in the event of the coincident death of death as a result of the same casualty of myself and said wife, or of her testamentary incapacity at any time, then upon the death of the said Julia A. Vogt I give, devise and bequeath all and whatsoever my residuary estate to my sister, Rachel A. Wallhauser, to her, her heirs, executors, administrators and assigns, forever.
In the event of our simultaneous death as hereinbefore set forth, then and in that event, I name and appoint the said Rachel A. Wallhauser sole executrix of this my last will and testament in lieu and stead of the said Julia A. Vogt then deceased, and I order and direct that no bond be required or taken from my said executrix in connection with her administration of my estate."
It is the foregoing paragraph that presents the principal legal issue to be determined by the court, namely, the nature of the estate given to Julia A. Vogt by the will of Andrew G. Vogt.
Both Julia A. Vogt and Rachel A. Wallhauser survived Andrew G. Vogt. Rachel A. Wallhauser died on April 10,
1937, leaving a will admitted to probate on June 28, 1937. By her will Rachel A. Wallhauser left her entire estate to her husband, Henry J. F. Wallhauser, "with full power to use or consume any part of the whole thereof," and further provided that "upon the death of my said husband, I give, devise and bequeath to my sons H. Andrew Wallhauser and George M. Wallhauser, so much of my estate as then remains, in equal shares." It is not necessary to determine whether the remainder to H. Andrew Wallhauser and George M. Wallhauser is valid under the principle of law most recently expressed in Fox v. Snow , 6 N.J. 12 (1950), because if Rachel A. Wallhauser's interest in the estate of Andrew G. Vogt vested absolutely in her husband Henry J. F. Wallhauser and the remainder to her sons was void by reason of Fox v. Snow, supra , then these same two remaindermen succeed to the interest, if the same was absolute, vested in their father, Henry J. F. Wallhauser, by virtue of the terms of his will which left his entire residuary estate to his sons George M. Wallhauser, the plaintiff, and H. Andrew Wallhauser. Moreover, on August 28, 1947 the plaintiff George M. Wallhauser was appointed as substituted administrator c.t.a. of the estate of Rachel A. Wallhauser and as such substituted administrator c.t.a. he became obligated to complete the administration of the estate of ...