This is an action for the construction of the will of Rose Schmurak who died on January 4, 1952. The testatrix was survived by three children, Dora Greene, Leon Schmurak and Robert Schmurak. The latter two and Beatrice Alterowitz were appointed and qualified as executors.
The provisions of the will which give rise to this action are as follows:
"THIRD: All the rest, residue and remainder of my estate, real, personal and mixed, whatsoever and wheresoever situate, and every interest therein, I give, devise and bequeath unto my children, DORA GREENE, LEON SCHMURAK and ROBERT SCHMURAK, to them, their heirs and assigns forever, to be divided among them in the following proportions, viz: FIFTY (50%) PER CENT to my daughter, DORA GREENE, TWENTY-FIVE (25%) PER CENT to my son, LEON SCHMURAK, and TWENTY-FIVE (25%) PER CENT to my son, ROBERT SCHMURAK. It is my wish, and I hereby direct that my said estate be divided in such manner only so long as my said sons, Leon Schmurak and Robert Schmurak retain possession of all of my real estate; should my said sons, Leon Schmurak and Robert Schmurak dispose of or sell my said real estate, then and in that event I hereby direct that my said residuary estate be divided among my said daughter, DORA GREENE, and my said sons LEON SCHMURAK and ROBERT SCHMURAK, in the following proportions, viz: SEVENTY (70%) PER CENT to my said daughter, Dora Greene, FIFTEEN (15%) PER CENT to my said son Leon Schmurak, and FIFTEEN (15%) PER CENT to my said son, Robert Schmurak.
FOURTH: I hereby appoint my sons, LEON SCHMURAK and ROBERT SCHMURAK and BEATRICE ALTEROWITZ, to be executors of this my Last Will, with full, complete and ample power to sell, mortgage, lease or otherwise dispose of my property, real, personal and mixed, at such times, at such prices and upon such terms as they may deem best, and to give and execute all necessary or required documents to consummate any such disposition thereof, and I give them power to retain such of my investments as they may deem it wise to retain, notwithstanding such investments may not be investments such as are permitted to be made by executors under the laws of New Jersey. I request and direct that my said executors be not required to give bonds as such in any jurisdiction.
FIFTH: It is my wish and I hereby direct that the share of my daughter, Dora Greene, herein devised to her, be paid over to her in
monthly installments of ONE HUNDRED ($100.00) DOLLARS, each and every month during the term of her natural life, and upon her death, I give devise and bequeath her share in my said estate, unto her children, to them, their heirs and assigns forever. It is my further wish and I hereby direct that in the event that said sum of ONE HUNDRED DOLLARS ($100.00) each month, shall not be sufficient for my said daughter, Dora Greene, to get along on, then she shall be paid such sum in excess thereof, each month, as shall be necessary for her to get along on."
Mrs. Greene has two children, and they join with her as plaintiffs in contending that she took in fee 50% of the residue of her mother's estate.
This case presents a problem that arises in varying forms when a seemingly inconsistent or repugnant disposition of property is made between a first and subsequent takers. In Trafton v. Bainbridge , 125 N.J. Eq. 474 (E. & A. 1939), the court referred to three rules which had been developed to govern testamentary disposition of this kind and cited cases in support thereof. The first is that where there is a devise or a bequest of property to A, in terms indicating clearly that a fee simple or an absolute estate is intended to be given, a fee passes; and that a gift over to B, at A's death, of the same property or what remains of it, is invalid and passes nothing. The second is that where a bequest or devise to A is in terms indicating clearly that only a life estate is intended to be given and although A receives a power of absolute disposal of the property without any limit or restriction as to the time or manner of its execution, A takes only a life estate with a power of disposition, and a subsequent gift to B, upon A's death, of such part of the property as remains undisposed of, is valid and effective. The third is that where there is a devise or bequest to A, in general or indefinite terms only, expressing neither a fee nor a life estate, and there is given to A an unlimited power of disposal, and there is a subsequent devise of the same property or what may remain of it to B, upon A's death, the devise or bequest to A is construed to pass a fee and the gift over to B is invalid. Judge Clapp in 5 N.J. Practice, secs.
233, 235 and 236, discusses these rules and the cases supporting them as well as some that express a differing view.
In the dissenting opinion in Fox v. Snow , 6 N.J. 12 (1950), by Chief Justice Vanderbilt, which criticized the technical rule of law which there defeated the plain intent of a testatrix, there is an extensive discussion of the doctrine which had its origin in an opinion by Chancellor Kent in Jackson ex dem. Livingston v. Robins , 16 Johns. 537 (N.Y. Ct. App. 1819); and at pages 20 and 21 of 6 N.J. there is a reference to a number of decisions of this State dealing with the ...