Eastwood, Jayne and Francis. The opinion of the court was delivered by Francis, J.A.D.
The Chancery Division, in construing decedent's will, found that a certain specific bequest had been adeemed. The legatees and the executor appeal.
On November 29, 1950 the testator, David Arenofsky, executed his last will and testament. At this time he was a member of a partnership doing business under the trade name Max Arenofsky Sons. The firm had been inherited in equal
shares by the testator and his five brothers from their father, Max Arenofsky, who founded it. Two stores were operated for the retail sale of hats, one at 521 Broadway, Bayonne, N.J., and the other at 202 Richmond Avenue, Staten Island, N.Y.
"2. I give and bequeath all of my right, title and interest in and to my share in the business known as M. Arenofsky Sons and also known as Max the Hatter, which business is now conducted at 521 Broadway, Bayonne, New Jersey and at 202 Richmond Avenue, Staten Island, New York, including the good will and other assets of said business to my brothers Harold Arenofsky, Barney Arenofsky, Louis Arenofsky and Hyman Arenofsky, share and share alike and only to such brothers who should survive me, subject, however, to the provisions hereinafter set forth.
3. I hereby direct that my executor hereinafter named shall pay to my wife, Shirley, out of my share of the profits of said business, such amount as he may deem proper for her support and maintenance during her life time or until she remarries.
4. I further direct my executor that in the event I should have a child or children, then my said executor shall pay to such child or children out of my share of the profits of said business such amount as he may deem proper and necessary for the support and maintenance of such child or children until having attained the age of 21 years.
5. I hereby give, devise and bequeath all of the rest, residue and remainder of my estate, whether real or personal and wheresoever situate to my wife Shirley."
Prior to the execution of the will on November 21, 1950 one of the brothers, Abraham Arenofsky, died intestate and his widow was appointed administratrix of his estate. On March 16, 1951, which was subsequent to the incorporation hereafter referred to, the widow individually and as administratrix transferred Abraham's interest by bill of sale to the surviving brothers individually.
On January 26, 1951, less than two months after David's will was drawn, the brothers formed a corporation under the name M. Arenofsky Sons. They transferred their respective interests to it in exchange for stock, each receiving an equal number of shares. The corporation continued to operate the identical business and at the same locations.
David Arenofsky died on September 11, 1951, leaving only his widow, Shirley, surviving. His will was probated and Barney Arenofsky qualified as executor.
The widow, Shirley, instituted this action seeking, among other things, a construction of the will and a judgment that the executor is required thereunder "to contribute a proper amount" for her support "out of said businesses" during her lifetime, or until she remarries.
The trial court decided that the effect of the creation of the corporation and the transfer to it of the decedent's equal share of the partnership and the receipt in return therefor of shares of stock was to adeem the bequest of the partnership interest. Then he concluded that the title to the shares of stock passed to the widow as sole residuary legatee.
The test of ademption of a specific legacy in this State is whether the subject is "lost, destroyed, or subsequently disposed of by testator, or so altered in form, by testator's subsequent acts, as to indicate a change of testamentary intent on his part. Conversely, if the subject, although somewhat changed in form, be not sufficiently changed to indicate change of testamentary intent, there is no ademption." Chase National Bank v. Deichmiller , 107 N.J. Eq. 379, 382 (Ch. 1930); In re Cooper's Estate , 95 N.J. Eq. 210 (E. & A. 1923); Annotation , 16 A.L.R. 2 d 1404.
Respondent contends here that the change of the decedent's interest from a share in a partnership to a like share in a corporation, even though organized by the members of the partnership and conducting the identical business at the same locations, constitutes such a substantial metamorphosis in the subject matter of the ...