Goldmann, Freund and Conford. The opinion of the court was delivered by Goldmann, S.j.a.d.
The primary question involved on this appeal is whether decedent's will comes within the rule of construction that where a will devises a full estate in fee, a subsequent provision purporting to give the same devisee a lesser estate in the property is repugnant to the initial disposition and therefore void.
Rose Schmurak, an elderly widow, died testate on January 4, 1952, leaving three children: a daughter Dora Greene, one of the plaintiffs and a deaf-mute, and two sons, Leon and Robert Schmurak, defendants herein. At the time of the death Dora was married to a deaf-mute and had two children, Joan and Barbara, who are adults and have joined as plaintiffs in this action. Decedent's residuary estate consisted of two bank accounts totalling $2,828.06, and three apartment buildings: one consisting of 4 apartments in Edgewater, N.J., one of 16 apartments in Cliffside Park, N.J., and one of 17 apartments, together with two stores, in West New York, N.J. She disposed of her residuary estate in the third paragraph of the will, which provided:
"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."
The fourth paragraph of the will provided:
"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."
The fifth paragraph of the will stated:
"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."
By their complaint plaintiffs charged that they had tried to get the executors to dispose of the real estate because the return therefrom did not justify its retention and was inadequate to give Mrs. Greene the sum of $100 each month, besides such monies as she might need to "get along on," as
provided in the will; and that although the executrix Beatrice Alterowitz, now Kreppel, had taken a neutral position -- whatever was agreeable to the other executors and to plaintiffs was acceptable to her -- the executors, Leon and Robert Schmurak, were willing to dispose of the property only on condition that the provisions of the will be disregarded and the proceeds divided into equal shares, one-third to go to each of decedent's children. Plaintiffs contended that Mrs. Greene was entitled to receive her portion of the proceeds in full and in one lump sum in the event of sale, but that the two executors had taken the position that the fifth paragraph of the will was controlling. The complaint further charged that the two executors were not exercising their best judgment in the interest of the estate, because of their conflicting personal interest, and that they had shown bad faith by refusing to dispose of the real estate or any part thereof when the circumstances so required. There was a further claim that the executors had not filed a formal accounting, but this phase of the case was later abandoned when the executors stated that an account would soon be presented. This was done. Plaintiffs demanded judgment construing the will, directing the executors to dispose of all or part of the real estate, directing Leon and Robert Schmurak to refrain from taking any management fees and to restore such sums as they had taken theretofore, and requiring these two executors to resign or to be removed.
Defendants in their answer alleged that they had performed their duties as executors in a proper manner, had not abused their discretionary power of sale, and had never permitted their personal interests to conflict with that of their sister. The executrix Beatrice Kreppel did not answer, and a default judgment was taken against her.
After a hearing the trial court held that the will, read as a whole, clearly showed that defendants' primary and dominant intention was to insure a monthly income to Mrs. Greene, for life. Greene v. Schmurak , 34 N.J. Super. 115 (Ch. Div. 1955). Judgment was entered declaring that defendants each had a 25% interest in the residue in fee,
subject to being divested to the extent of 40% of their prospective shares in the event of their sale of the real estate, and directing that the remaining 50% of the residue be held in trust by the executors to pay $100 monthly to Mrs. Greene, and if that proved insufficient for her to get along on, such further sum monthly as would be necessary for the purpose. In the event that defendants' shares were reduced, such shares were to be added to the trust, the corpus of the trust to go to Mrs. Greene's children in fee upon her death. The judgment further approved the action of the executors in retaining the real estate, and allowed executors' commissions on corpus and income at the rate of 5% and trustees' commissions on corpus at the rate of 1%. It also upheld plaintiffs' exception to that part of the ...