On appeal from Essex County Court, Probate Division.
For modification -- Chief Justice Vanderbilt, and Justices Heher, Oliphant, Wachenfeld, Burling, Jacobs and Brennan. Opposed -- None. The opinion of the court was delivered by Burling, J.
This appeal brings before this court the narrow issue of the propriety of an allowance of corpus commissions to fiduciaries in the matter of the estate of Henry Welsh Rogers, deceased. The allowance was incorporated in a judgment of the Essex County Court, Probate Division, entered on June 25, 1953. The life tenant of the estate, Josephine Chesney McCann, filed the appeal in the Superior Court, Appellate Division, but prior to hearing there certification was allowed on our own motion.
The parties to this appeal agree on the antecedent facts concerning the decedent's estate, which matters are not at issue here. The decedent, Henry Welsh Rogers, died testate on January 22, 1951. He left a sizeable estate, consisting largely of marketable securities. His will was admitted to probate by the Surrogate of Essex County on February 2,
1951 and an appeal was taken from the judgment of probate. See In re Rogers, 15 N.J. Super. 189 (Cty. Ct. 1951).
By item Ninth of the will, the testator gave, devised and bequeathed his entire residuary estate, including "all property" over which he had power of appointment, to Robert Freund, as trustee, in trust, "to pay over the net income therefrom, from the date of my death, every four months, to JOSEPHINE CHESNEY SORENSEN, for and during her natural life," with power in the trustee to invade the corpus for the benefit of the life tenant in the event of medical emergency, and with provisions over, inter alia, (the details of which, both as to income and as to corpus, are not here pertinent) for the execution of educational or charitable uses for Princeton University at Princeton, New Jersey, and Columbia University, in the State of New York. The testator appointed Josephine Chesney Sorensen and Robert Freund as executors.
The present controversy stems from a portion of the last item of the will, which portion relates solely to the trust and reads as follows:
"I order and direct that during such time as the said ROBERT FREUND, ESQ., shall be acting as Trustee hereunder, he shall receive as compensation for his services as Trustee, and/or his nominees and successors, the statutory compensation allowed by Law of the State of New Jersey on income, and commissions of one per cent (1%) on principal at the end of each year. Said commissions based on principal however, shall be paid out of the income of the Trust Estate in order that the corpus thereof may not be depleted, but that in no year shall the compensation for the services as Trustee on income and the commissions on corpus payable to the said Trustee be less than a total of two per cent (2%) of the corpus of the Trust Estate."
There was a contest in the Essex County Court. This terminated in a settlement which resulted in a judgment of the Essex County Court, Probate Division, on February 18, 1952, which affirmed the judgment of probate, relieved and discharged Josephine Chesney Sorensen and Robert Freund as executors, relieved and discharged Robert Freund as trustee, and appointed Alfred C. Clapp and The Morristown
Trust Company substituted administrators with the will annexed and substituted trustees under said will. The judgment also included the following provisions:
"4. The assets of the estate of the said Henry Welsh Rogers be paid and delivered to the said Alfred C. Clapp and The Morristown Trust Company as such substituted administrators with the will and codicil annexed, and shall at all times be kept in the custody and control of said The Morristown Trust Company and subject to accounting by the substituted administrators and substituted ...