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Tourigian v. Tourigian

Decided: December 16, 1953.

HARRY TOURIGIAN AND MITCHELL TOURIGIAN, EXECUTORS UNDER THE WILL OF MESROP TOURIGIAN, DECEASED, PLAINTIFFS,
v.
AGNES TOURIGIAN, INDIVIDUALLY AND AS GUARDIAN OF LORA TOURIGIAN, MICHAEL TOURIGIAN AND ARAXIE TOURIGIAN, MINORS, HARRY TOURIGIAN, MITCHELL TOURIGIAN, GRACE M. SUNY, VICTORIA BERGES, LORA TOURIGIAN, MINOR, MICHAEL TOURIGIAN, MINOR, AND ARAXIE TOURIGIAN, MINOR, DEFENDANTS



Haneman, J.s.c.

Haneman

Plaintiffs herein seek the construction of the will of Mesrop Tourigian, who died December 5, 1952, leaving a last will and testament dated January 10, 1947, which was duly admitted to probate in the Atlantic County Surrogate's Court on December 16, 1952.

At the time of his death he left him surviving a widow, Agnes, and seven children. Four of said children, all adults, were born of a prior marriage, and three of the children, all minors, were born of his marriage to Agnes.

The question herein raised is as follows: Does paragraph Third of testator's will impose a trust upon the three-fifths share of his estate therein devised and bequeathed?

The pertinent sections of the will are as follows:

" SECOND: All the rest, residue and remainder of my estate, real, personal and mixed, of whatsoever nature and wheresoever situate, I give, devise and bequeath as follows: Three-fifths (3/5) to my beloved wife, Agnes Mangigian Tourigian. The remaining

two-fifths (2/5) to be divided among all my children, in equal shares between them.

The word or words 'children' or 'all my children,' as used in this Will, shall apply to the children born of my present marriage and also the children born of any previous marriage.

THIRD: It is my desire and I hereby direct my wife, Agnes Mangigian tourigian, to provide a suitable and adequate home, support, maintenance, care and education for our minor children out of her three-fifths (3/5) share of my estate. My wife shall maintain for herself and my minor children, a home, in such circumstances and with such environment as shall be compatible with their present status in life and manner of living. Should my wife's share be insufficient to provide and care for my minor children, as stated above, then and in that event, my wife is herein authorized to obtain whatever moneys may be necessary for this purpose from my minor children's share of my estate, provided she shall obtain, on application, the approval of a Court of competent jurisdiction. My wife shall continue to provide for my minor children until each of them shall reach the age of twenty-one (21) years, or, unless of course, they shall die prior to that time; or shall marry; or shall establish their own home or household elsewhere.

Should my beloved wife die while carrying out the duties imposed upon her under this paragraph ' THIRD ,' then and in that event, I direct that my son, Harry Tourigian, shall carry out these duties, as substituted guardian.

SIXTH: I nominate, constitute and appoint my beloved wife, Agnes Mangigian Tourigian, the Guardian of my infant children during their respective minorities, as stated in ' THIRD ' above, to serve without bond in this State or in any other State. Should she predecease me, or die during the minority of any of our children, then I direct that my beloved son, Harry Tourigian, be appointed as Guardian of my minor children, in her place and stead, to serve without bond in this State or in any other State." (Underscoring supplied.)

Plaintiffs argue that it was not the testator's intent to impress a trust on a three-fifths share of his estate devised and bequeathed under paragraph Second to his widow.

If a contrary intent is to be found, it must be by sections of the will other than paragraph Second, and ...


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