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Kennedy v. Mockler

Decided: November 4, 1955.

FRANK T. KENNEDY, ET AL., PLAINTIFFS-RESPONDENTS,
v.
ALFRED J. MOCKLER, ET AL., DEFENDANTS-APPELLANTS AND CROSS-RESPONDENTS



Goldmann, Freund and Conford. The opinion of the court was delivered by Goldmann, S.j.a.d.

Goldmann

Defendants Kathleen Telford, Dorothy Pennington DeFilippo, Kathleen Gallo, Dorothy Guth, Agnes Conroy and the estate of Belle Saul appeal from a judgment of the Chancery Division directing a distribution of the residuary estate of Denis James Mockler, deceased, among all of the 14 legatees named in paragraphs Seventh through Twentieth of his will in proportion to the amount of their bequests as set forth in those paragraphs, notwithstanding the revocation of four of the bequests by specific provisions contained in a codicil to that will.

By their amended complaint plaintiffs, as executors of the will and codicil of Denis James Mockler, sought the instructions of the court as to the distribution of testator's residuary estate. Mockler died March 5, 1951, leaving a last will

dated October 8, 1948 and a codicil dated August 10, 1949. The will and codicil were probated, the estate administered, and taxes and administration expenses have been paid, as have general legacies. Mockler left an estate valued at approximately $435,000, consisting largely of securities. The account of the executors has been approved and their commission paid. The residuary estate amounts to approximately $240,000.

I.

By his will decedent, after providing for payment of debts and funeral and testamentary expenses, first made certain religious and charitable bequests totalling $4,000. He then made cash bequests totalling $88,000, as follows:

Par. Seventh Alfred Mockler, brother $20,000

Par. Eighth Annie Mockler, sister 15,000

Par. Ninth Kathleen Telford, sister 5,000

Par. Tenth Louise Kennedy, sister 5,000

Par. Eleventh Christina Harding, sister 5,000

Par. Twelfth Belle Saul, sister 2,500

Par. Thirteenth Marguerite Connolly, niece 2,500

(daughter of deceased sister)

Par. Fourteenth Nora Farrell, niece 5,000

(daughter of Louise Kennedy, sister)

Par. Fifteenth Agnes Conroy, niece 500

(daughter of Belle Saul, sister)

Par. Sixteenth Dorothy Guth, niece 500

(daughter of Belle Saul, sister)

Par. Seventeenth Frank Kennedy, nephew 15,000

(son of Louise Kennedy, sister)

Par. Eighteenth Alfred Harding, nephew 2,000

(son of Christina Harding, sister)

Par. Nineteenth Dorothy Pennington (friend) 5,000

Par. Twentieth Kathleen Gallo (friend) 5,000

Total $88,000

By paragraph Twenty-first he disposed of his residuary estate in the following manner:

"I direct that all the rest, residue and remainder of my estate, of whatsoever it may consist and wheresoever situated, whether

real, personal, or mixed, be converted into money and I give and bequeath to each beneficiary under Paragraphs 7 to 20 inclusive of this my Last Will and Testament, an amount of money that is in the same proportion to the total amount of my residuary estate as the amount of money which that beneficiary receives under any paragraph of the said Paragraphs 7 to 20 inclusive is to the total amount, not including the amount that is paid over to become a part of my residuary estate, that is paid over to the said beneficiaries under the said Paragraphs 7 to 20 inclusive of this my Last Will and Testament."

In each instance in which he had given a legacy in paragraphs Seventh to Twentieth the testator anticipated the possibility that the legatee might predecease him. He accordingly made provision for alternate disposition in such event, either to the children, sisters or parents of such legatee, or to his residuary estate. Each primary legatee named in those paragraphs in fact survived him. His sister Belle Saul, who received $2,500 under paragraph Twelfth, died subsequent to testator, and her executors (her daughters Mrs. Conroy and Mrs. Guth), each of whom received $500 under paragraphs Fifteenth and Sixteenth, have been substituted as parties in her stead.

Testator nominated plaintiffs Frank Kennedy, his nephew, and the First National Bank and Trust Company of Montclair, executors of his will.

On August 10, 1949 testator executed a codicil. After first referring to the will he stated, "I now desire to make certain changes therein and additions thereto," and "do make, publish and declare this my Codicile [ sic ] to my Last Will and Testament in the following manner: * * *." In paragraphs First, Third, Fifth and Seventh of the codicil he stated, "I hereby revoke" the Seventh, Eighth, Thirteenth and Seventeenth clauses, respectively, "of my Last Will and Testament in its entirety, wherein I made a bequest to" his brother Alfred Mockler, his sister Annie Mockler, his niece Marguerite Connolly, and his nephew Frank Kennedy, respectively. By paragraphs Second, Fourth, Sixth and Eighth of the codicil he made bequests to each of these four relatives, as follows:

(1) In the case of his brother Alfred Mockler (paragraph Second) he provided -- as compared with the $20,000 bequest under the will -- for a trust fund of $30,000 to be administered by Frank Kennedy and the First National Bank and Trust Company of Montclair as trustees, from which fund Alfred was to receive $1,200 a year in equal monthly installments, the trustees being authorized to invade the principal to meet the payments, if necessary. On Alfred's death the remainder was to go to testator's sisters who should survive testator, per stirpes; and if Alfred predeceased or died simultaneously with testator, the principal was to go in the same manner.

(2) In the case of his sister Annie Mockler (paragraph Fourth) he provided for a bequest of $10,000, as compared with the $15,000 bequest under the will, and further directed that in the event of her death prior to or simultaneously with his the $10,000 was to "be paid over to and become part of my residuary estate under my Last Will and Testament."

(3) In the case of his niece Marguerite Connolly (paragraph Sixth) he provided for a bequest of $100, as compared with the $2,500 bequest under the will, and directed that in the event of her death prior to or simultaneously with his, the $100 was to "be paid over to and become part of my residuary estate under my Last Will and Testament."

(4) Finally, in the case of his nephew Frank Kennedy (paragraph Eighth) he provided for a bequest of $10,000, as compared with the $15,000 legacy under the will, and directed that in the event of his nephew's death prior to or simultaneously with his, the $10,000 should go to Kennedy's daughter, and if the latter should predecease or die simultaneously with the testator the bequest was to "be paid over to and become part of my residuary estate under my Last Will and Testament."

The effect of the changes made by the codicil in the bequests of the named beneficiaries was to reduce the total bequests, other than the $4,000 given to religious and ...


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