Clapp, Jayne and Francis. The opinion of the court was delivered by Jayne, J.A.D.
One Alexander S. Wilson, a resident of the City of Bayonne, died testate on December 27, 1954. His last will and testament, dated January 21, 1953, was duly admitted to probate on January 7, 1955, and the defendant conformably with the nomination in the will qualified as the executor and trustee of the decedent's estate.
Of present relevancy is article "Fifth" of the will which reads:
" Fifth: As to the trust fund herein, created and to be created from the proceeds of my stock holdings in and ownership of the business of A.S. Wilson, Inc., as set forth above, and created further from the funds on deposit to my personal account, in banks, I do give, devise, bequeath and apportion same as follows, viz.:
a. To Hazel S. Day, for life, the sum of $2,500. (twenty five hundred dollars) per year, in quarterly, semi-annual or annual payments as the trustee may find best suited for the welfare of the said beneficiary. And as long as the said beneficiary remains single, and accordingly in need of maintenance and support, and if in that period, in the discretion of the trustee it becomes necessary to invade
the principal of the trust estate for the benefit and welfare of the said beneficiary, the trustee may and he hereby is given power and discretion to do so, to the extent he deems necessary.
b. Upon the death of said Hazel S. Day, the balance of said trust fund, if there be any balance left, to then be held by the trustee for the account of the said William Wilson, Jr. and Robert Wilson, my grandchildren, share and share alike, and to be paid to them by the trustee, upon their reaching twenty-one (21) years of age. The corpus of this remainder, if any, may be held in the discretion of the trustee as a common fund, or in equal, separated funds, for the account of each infant."
The annuitant, Hazel S. Day, has remained unmarried and has persistently requested the defendant in the exercise of his fiduciary discretion to increase the amount of the annuity for her benefit and welfare in pursuance of the power and authority conferred upon him by the terms of the testator's will. The defendant has declined to grant her requests.
The annuitant, evidently conceiving the refusals of the defendant to be arbitrary and unreasonable in the existing conditions, sought relief in the Chancery Division. Her complaint charged that the defendant "has abused his discretion in refusing to make a larger payment to plaintiff for her maintenance and support" and prayed for an order directing the defendant in his fiduciary capacity to pay to plaintiff the annual sum of $5,000 or such increased sum above $2,500 "as the court feels plaintiff is justly entitled to for her proper maintenance and support."
In response to the defendant's motion, the judge of the Chancery Division dismissed the complaint, disclosing in his order two specific reasons: the one, that the complaint failed to state a cause of action for which relief could be granted; and the other, that the remaindermen of the trust were not made parties to the action.
We immediately acquiesce in the conclusion of the Chancery Division judge that in an action of this object and nature implicating a reduction in the corpus of the trust, the remaindermen, one of whom is an infant, are necessary ...