This suit concerns the construction of the codicil of the will of Leon M. Leopold.
Leon M. Leopold died October 15, 1923 leaving a last will and testament and a codicil thereto, which codicil reads as follows:
"NINTH. All the rest and residue of my estate, whether real, personal or mixed, whatsoever and wheresoever situate, that I may die seized and possessed of and entitled to including the proceeds arising from any sale or sales of real estate hereinafter authorized, after the payment of my just debts, funeral expenses and legacies aforesaid, I give, devise and bequeath unto Camden Safe Deposit & Trust Company of Camden, New Jersey, in trust to invest and reinvest the same from time to time and to pay the net income thereof monthly to my wife in case she survives me, and as long as she remains unmarried and in case she remarries, then to pay to her monthly, one-third of said net income during the term of her natural life, and the other two thirds to my said sister, in
case the latter survives me, and in case my sister does not survive me, then to pay the said two-thirds to her two sons, Arthur L. and Jerome M. Shoenberg, share and share alike; and in case my said wife does not survive me or in case she does survive me, then at her death, I hereby direct my said Trustee to pay over one-third of the whole of the residue of my estate, including any accumulations of income then on hand, to Helen M. Leopold, the daughter of my wife by a former husband and pay over the remaining two-thirds of the whole of the residue of my estate to my said sister in case she survives me, and in case my said sister does not survive me, then to pay over said two-thirds to her two sons, Arthur L. and Jerome M. Shoenberg, share and share alike. In case Helen M. Leopold does not survive me, then I hereby direct my said Trustee to pay over the whole of the residue of my estate to my sister, in case she survives me, and in case my said sister does not survive me, (the said Helen M. Leopold predeceasing me) then to pay over to her two sons, Arthur L. and Jerome M. Shoenberg, the whole of the residue of my estate, share and share alike; and it is my will and intention that my said Trustee shall have full power and authority to invest and reinvest the said residue in good real estate securities and in stock, bonds or such other securities as they shall deem proper."
The designated beneficiaries will be herein referred to by their relationship to the testator.
The testator was survived by his widow, step-daughter, sister and nephews. The sister died intestate on August 15, 1927 and her son Jerome was appointed administrator. Administration of her estate has been completed and all debts and taxes have been paid. The widow remarried on August 15, 1950. The widow, step-daughter and nephews are still living.
Under the above facts, the primary questions propounded are: (1) to whom is the two-thirds of the income, payable to the sister on the widow's remarriage, to be paid, and (2) may any portion of the corpus be now distributed? As a secondary question, the plaintiff requests instructions as to whom such payments are to be made.
Counsel for all parties are in accord that the gift to the sister of two-thirds of the income was a contingent estate in remainder, conditioned upon the remarriage of the widow, and that the death of the sister prior to such remarriage defeated this gift over. They argue that the will created a
gift of a legacy contingent upon the occurrence of an event which is uncertain of happening, and cite those cases which hold that the gift to a person of a future interest on the happening of an uncertain event, with the words "at," "on," "when," or similar expressions attached to the happening of the event makes the gift prima facie contingent and the donee's right to enjoyment dependent upon whether he is alive at that specific time.
Taken out of the context and standing alone, the words "then to pay" might have the effect argued by counsel under the well-recognized rule of construction, above referred to. However, like all other rules that serve to indicate the intention of the testator, it must yield to the structure and context of the legacy and the other ...