On appeal from the Superior Court, Chancery Division.
For modification -- Chief Justice Vanderbilt and Justices Heher, Oliphant, Wachenfeld, Burling, Jacobs and Weintraub. Opposed -- None. The opinion of the court was delivered by Weintraub, J. Heher, J. (for modification). Jacobs, J., joins in this modification.
[24 NJ Page 212] The executors and trustees under the will of Jacques Wolf filed a complaint in the Chancery Division seeking construction of provisions creating a trust for the benefit of employees of Jacques Wolf & Co., a corporation. The will directs payment of a pension of $125 per month to employees who theretofore retired or thereafter retire after serving 25 years with the company. The issue is whether an employee who voluntarily quits after such period of service is entitled to take. Initially plaintiffs were of the view that he is and some payments were made on that basis, but a doubt thereafter ensuing, plaintiffs brought this action.
Three alternative constructions are advanced: that an employee with 25 years of service (1) is entitled to benefit even though he quits; (2) may benefit only if at the time of severance he is entitled to payments under the social security law; and (3) may benefit only if retired by the company. The trial court adopted the second view. We certified the appeal on our motion before consideration of it by the Appellate Division.
The will was executed on April 2, 1946. Mr. Wolf passed away on January 26, 1954. The provision here involved reads in part:
"Clause (5) Forty percent (40%) thereof to my Trustees hereinafter named, in trust, however, for the following purposes: To hold the same until the death of the last survivor of the following described persons, namely, my chauffeur, Fred Brower, my friend, Jerome Payet, all persons who at the time of my death are employees of Jacques Wolf & Co., all former employees of Jacques Wolf & Co. who retired prior to my death after having served for twenty-five (25) or more years with Jacques Wolf & Co., and the wives of all such employees and retired employees who had been married to them for at least twenty (20) years at the time of my death; to invest and keep the same invested and to make the following payments therefrom:
SUBDIVISION (a) To each employee of Jacques Wolf & Co. who is employed by it at the time of my death and who may hereafter retire after having served with said Company for at least twenty-five (25) years and to my friend, Jerome Payet, regardless of his years of service with said Company, a pension for life of One hundred twenty-five Dollars ($125.) a month, the first payment to be made thirty (30) days after retirement.
SUBDIVISION (b) To each former employee of Jacques Wolf & Co. who has retired after twenty-five (25) or more years of service with said Company, and to my chauffeur, Fred Brower, a pension for life of One hundred twenty-five Dollars ($125.) a month, the first payment to retired employees to be made thirty (30) days after the admission to probate of my will, and the first payment to Fred Brower to be made upon his attaining sixty (60) years of age or, should he attain sixty (60) years of age prior to my death, thirty (30) days after the admission to probate of my will. Should Jerome Payet, hereinabove mentioned in Subdivision (a) hereof, retire from Jacques Wolf & Co. prior to my death, then his pension shall commence thirty (30) days after the admission to probate of my will.
SUBDIVISION (c) To the widow of any former employee who is receiving a pension from this trust at the time of his death,
provided that she had been married to such employee for at least twenty (20) years prior to my death, a monthly pension for life of One hundred twenty-five Dollars ($125.).
For the purpose of this will employees of Jacques Wolf & Co. shall be construed to exclude officers and directors of the Company.
In the event that any of the persons entitled to receive pensions under Subdivisions (a), (b) and (c) of this Clause shall receive any pension or retirement allowance from Jacques Wolf & Co. as a result of the establishment by said Company of a pension plan, which pension or retirement allowance is payable in regular instalments during the life of such person, then such person shall only be entitled to receive the difference, if any, between the amount received from the Company's plan and One hundred twenty-five Dollars ($125.) per month. In addition, all pensions hereinabove directed to be paid by Subdivisions (a), (b) and (c) of this Clause shall be further reduced by any amounts received by the persons entitled to pensions hereunder on account of Social Security Benefits, it being my intention that all such persons shall, except as otherwise hereinafter provided, only be entitled to ...