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Matter of Estate of Elizabeth King Hosford

Decided: June 11, 1953.

IN THE MATTER OF THE ESTATE OF ELIZABETH KING HOSFORD, DECEASED


Eastwood, Bigelow and Jayne. The opinion of the court was delivered by Bigelow, J.A.D.

Bigelow

[26 NJSuper Page 415] This is a proceeding for directions instituted in the Monmouth County Court by the Bankers Trust Company as surviving trustee under the will and codicils of Elizabeth King Hosford, deceased. The question

presented arises upon the codicil dated April 26, 1926, which we will quote at length. It gives testatrix' residuary estate to trustees to divide into three equal portions and to hold the same for the following purposes:

"A. The income from one such portion is to be paid in quarterly installments unto my daughter, Mary Hosford Brackett Barrows, for and during the term of her natural life, and upon her death to be paid to each of her children, to wit; Bonita Cammann, Hosford Brackett and Ernestine Brackett, the sum of Ten Thousand ($10,000.00) Dollars, absolutely, out of the principal sum from which the said Mary Hosford Brackett Barrows has been receiving the income.

The balance of such principal sum I direct to be divided into three (3) equal shares or portions, and the income from each of such shares or portions is to be paid in quarterly installments unto each of my said grandchildren, Bonita Cammann, Hosford Brackett and Ernestine Brackett, for and during the term of his or her natural lifetime, and upon the death of either of said grandchildren, I direct that the principal sum from which he or she has been receiving the income, shall be divided equally between all of my surviving grandchildren.

B. The income from one such share or portion is to be paid in quarterly installments to my daughter, Faith Hosford Engle, for and during the term of her natural lifetime, and upon her death to pay to her son, Peter King Engle, the sum of Ten Thousand ($10,000.00) Dollars absolutely, out of the principal sum from which the said Faith Hosford Engle has been receiving the income.

The balance of such principal sum I direct to be paid in quarterly installments to my grandson, Peter King Engle, for and during the term of his natural lifetime, and upon the death of my said grandson, Peter King Engle, I direct that the principal sum from which he has been receiving the income be divided equally between all of my surviving grandchildren.

C. The income from the remaining share or portion of said trust estate, I direct to be divided into as many shares or portions as the number of grandchildren surviving me, and the income to be paid in quarterly installments from One (1) such share unto each of said grandchildren for and during the term of his or her natural lifetime, and upon his or her death, the principal sum from which he or she has been receiving the income is to be divided equally among all my surviving grandchildren."

Testatrix died June 14, 1926, survived by the two daughters and four grandchildren who are named in the codicil. On June 6, 1927 one of the daughters, Faith, gave birth to an infant, James M. Engle, and four days later Faith died. The other daughter, Mrs. Barrows, died in 1939 and the

first of the grandchildren to pass away, Bonita Shainwald (formerly Cammann), died March 1, 1951.

The question is: Who are entitled to the principal sum from which Bonita Sainwald had been receiving the income? The testatrix, by the last line in section A and the last line in section C of the codicil, directed the principal to be "divided equally between all of my surviving grandchildren" or "among all my surviving grandchildren." The County Court interpreted this to mean those grandchildren who were living at the time of testatrix' death and who survived Mrs. Shainwald. The interpretation excludes from participation in the fund, James, who was not yet conceived at testatrix' death, and also the estate of Mrs. Shainwald, who did not survive herself. James appeals, but the representative of Mrs. Shainwald does not.

Let us re-read the codicil. It is apparent that the several gifts of $10,000 to each of the three grandchildren who are named in the first paragraph of section A and to the one named in the first paragraph of section B, are gifts to them as individuals and not as members of a class. And so are the bequests of income "to each of my said grandchildren," naming the three children of Mrs. Barrows, and "to my grandson, Peter King Engle." Rippel v. King , 126 N.J. Eq. 297, affirmed 128 N.J. Eq. 179 (E. & A. 1940). We come to a class gift in the opening lines of section C, where testatrix directs the income from one-third of her residuary estate "to be divided into as many shares or portions as the number of grandchildren surviving me" and one share to be paid to each of said grandchildren for life. Plainly, she intended that the grandchildren living at her death, whether three, four or five, and whether or not they were mentioned by name in the codicil, should take in equal shares the whole income of the one-third of the residue. As it turned out, she left the ...


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