This is an action by the plaintiff, Camden Trust Company, substituted trustee, for advice as to the distribution of a fund held by it in trust under the fourth paragraph of the will of George H. Krueger, of the Borough of Chesilhurst, Camden County, New Jersey.
The testator died November 19, 1947, leaving a will and codicil which were admitted to probate January 6, 1948 by the Surrogate of Camden County.
By sub-sections (a) and (b) of the fourth paragraph of said will the decedent left the residue of his estate in trust, to use the income therefrom, and so much of the principle thereof as might be required, for the maintenance and upkeep of his home in Chesilhurst, which by paragraph Second of said will, he devised to his housekeeper, Louise Krause, for life. By subsection (c) of said fourth paragraph of his will he directed that upon the death of the said Louise Krause the residue of his estate be divided equally between Christ's Home of Warminster, Pennsylvania, and the First Methodist Church of Chesilhurst, New Jersey, subject to the following provision:
"Provided, however, that the share of the said The First Methodist Church shall not be paid to it until the expiration of five years from and after the date of my death. Should the said Church not then exist, the said share shall be paid to said Christ's Home, absolutely and forever."
Louise Krause is now deceased.
The sole question for determination is whether on November 19, 1952 The First Methodist Church of Chesilhurst existed within the meaning of subsection (c) of the fourth paragraph of decedent's will.
A review of the facts establishes that The First Methodist Church of Chesilhurst (hereinafter referred to as "First Methodist Church") was incorporated on August 13, 1917 under an act entitled "An act to incorporate trustees of religious societies," (now R.S. 16:1-1 et seq.). By the certificate of incorporation filed in the Camden County Clerk's office, the purpose for which it was formed was to
become an incorporated religious society subject to the discipline and usages of the Methodist Episcopal Church of the United States. Said certificate provides for a board of nine trustees, three to be elected each year. George H. Krueger was one of the incorporators and a member of the first board of trustees.
On November 19, 1952 the membership of said church had been reduced by death or removal to five persons, one of whom was a patient in the Home for the Aged at Lakeland, New Jersey. No elections or meetings of trustees or officers had been held for five years previous to that date, nor had any services been held in the church building since July 1949. The church has no resident pastor. It is nominally under the care of the pastor of the local Atco Church as a part of and known as a circuit charge, to which latter church the four remaining active members must travel to attend services. This pastoral charge (hereafter defined) includes three local churches located respectively at Atco, Sicklerville and Chesilhurst, New Jersey, all served by one clergyman.
On November 19, 1952 the building was and still is in a deplorable condition. Windows are broken out, the exterior woodwork is rotting in places, the roof leaks, and plaster is falling from the walls and ceilings. The building cannot be heated because the old hot-air heater is worn out and needs to be replaced. It cannot be lighted because the electricity has been shut off. On a sign by the church door the name of the pastor has been deleted.
The minutes for the years 1950, 1951 and 1952 show that the said church did not have a church school or Sunday school, nor a Woman's Society of Christian Service; that it made no contribution to the Connectional Funds of the ...