Clapp, Jayne and Francis. The opinion of the court was delivered by Clapp, S.j.a.d.
[43 NJSuper Page 514] The appellant, Mrs. Inez Stengel Gay, is one of the three remaindermen of a trust fund created by the will of her grandfather, C. E. Henry Stengel, of which fund the Fidelity Union Trust Company is presently the sole substituted trustee. She appeals from a judgment of the Superior Court, Chancery Division, insofar as the judgment directs the trustee to pay certain income of the fund to the executor of her grandmother, Annie May Stengel,
the life beneficiary under the trust. Mrs. Gay claims the income should go to the remaindermen.
On April 19, 1914 the testator died, leaving his residuary estate subject to these trusts:
"Second: I give, devise and bequeath all the rest, residue and remainder of my estate, both real and personal, to my executors hereinafter named and the survivors and survivor of them upon the following trusts:
(3) To set apart and hold and invest for each of my sons, Henry Ivan Stengel and Carl Raymond Stengel, the sum of ten thousand dollars ($10,000.00) and to pay the principal of the said sum so set aside, held and invested, to my said sons if and when they respectively attain the age of twenty-five (25) years.
(4) To set apart, invest and hold for my daughter, Dorothy Inez Stengel, the sum of ten thousand dollars ($10,000.00) and to pay the income that may arise therefrom after my said daughter shall attain the age of twenty-one (21) years to her quarterly from the time that she attains said age of twenty-one (21) years until she attains the age of thirty (30) years, and if and when my said daughter shall attain the age of thirty (30) years then to pay and make over to her the principal of said sum.
(5) To pay the net income from my said trust estate (including the income from the sums before directed to be set apart, held and invested for my sons and daughter until the principal thereof or the income therefrom shall be payable to my said sons and daughter as hereinbefore provided) to my beloved wife, Annie May Stengel, quarterly during her life if she shall so long remain my widow, for the support and maintenance of herself and the support, maintenance and education of my children during their minority.
(6) At the death or remarriage of my said wife, to divide, make over and pay the remaining principal of said trust fund and any income therefrom that shall not have been paid to my said wife under the foregoing provision , among and to my children in equal shares or parts; the issue of any deceased child to take the share or part to which the parent would have been entitled if living." (Italics added.)
On January 22, 1956 the life beneficiary, Annie May Stengel, died. Mrs. Gay is the only living child of testator's only daughter, Dorothy Inez Stengel, who died in 1932; and she and the testator's two sons named in the will are the sole remaindermen.
The income which the Chancery Division directed to be paid to Mrs. Stengel's executor consists of bond interest and
ordinary dividends, as follows: $7,714, which was in the trustee's hands at her death; and $2,153 accrued prior to her death, but received by the trustee thereafter. It is to be observed that no question is raised as to the proper method of apportioning the ordinary dividends included in the $2,153 (the dividends have been apportioned by the trustee on a day to day basis according to the formula stated in 5 N.J. Practice § 249 n 4, ...