Goldmann, Freund and Conford. The opinion of the court was delivered by Conford, J.A.D.
[45 NJSuper Page 156] These are appeals by different parties having or claiming an interest in the estate of Francis S. Pleasonton, deceased, from a judgment of the Burlington County Court, Probate Division, construing his last will
and testament and directing the mode of distribution of a portion of it. The particular subject of controversy is the devolution of the one-fourth part of the original estate set over in trust under the will for the benefit during her lifetime of the testator's daughter, Lillie Bowen Fuguet, who died a widow, without surviving issue, July 12, 1955. This now amounts to some $230,000.
The decedent executed his will October 12, 1903 while a resident of Philadelphia, Pa. He died July 29, 1928, then a resident for some years of Burlington County in this state. It may be of some later significance to point out that the original will was written in script, from all appearances in the handwriting of the testator, but, from its style and content, apparently copied from a draft made by a lawyer. A photostatic copy of it was submitted to the court at the argument without objection. One of the witnesses to the will was a Pennsylvania lawyer. The will has only four apparent paragraphs, but as printed in the appendices contains eight, exclusive of the execution and witnessing clauses. Since the opinion below and the discussions in the briefs deal with the will in terms of eight paragraphs we will do likewise to avoid confusion. In a number of instances the will as printed in the appeal papers capitalizes the words "in trust." The original will does not.
When the will was executed in 1903 the testator had four children, two daughters and two sons, who had then attained the following ages: Lillie Bowen Fuguet, 23; Frank Rodney Pleasonton, 19; Eugene Stephen Pleasonton, 15; Edith Clementine Pleasonton (later Edith Bowen Baker), 11. By the will testator directed the division of his estate into four equal parts, each of which he gave in trust for the benefit of a named child. The trusts for the daughters were identical. The net income (less 10% which was to be added to principal yearly) was to be paid to the daughter for life, free from debts, engagements or interference of any husband, and "from and immediately after the death of my said daughter" the principal was to go in trust to her children or to the issue of any child then dead
having left issue. The trusts for the sons were also identical. Out of the one-fourth part of the estate allocated to each, $20,000 was set aside in trust, the net income whereof was to be paid to the son for life, the principal of such sum then to go as provided by his will, or for want of a will to those entitled under the "intestate laws of Pennsylvania." The remaining portion of the one-fourth part was given in trust, the net income (less 10% which was to be added to the principal yearly) to be paid to the son until he attained the age of 30, and the entire principal to be then paid over to the son. In case of death of the son under the age of 30 leaving issue the principal was to go in trust to his children in equal shares.
The controversial part of the will is the seventh paragraph, which reads as follows:
"In case of the death of my said daughters, Lillie Bowen and Edith Clementine or either of them without leaving issue or the death of my sons, Frank Rodney and Eugene Stephen or either of them under the age of thirty years and without leaving issue, then in such case (Excepting the twenty thousand dollars given to each of my sons Frank Rodney and Eugene Stephen which has been provided for), I give, devise and bequeath the said part or share hereinbefore given, devised and bequeathed to such child so dying to my said Executor and the successor of it In Trust to hold the same for my surviving child or children in equal shares or portions in the same manner and for the same uses and purposes and under the trusts and limitations as are hereinbefore set forth concerning the parts or shares of my estate hereinbefore given, devised and bequeathed for the use and benefit of my said children respectively."
Upon the death of the testator in 1928 the will was probated by the Surrogate of Burlington County and the predecessor of the respondent, The First Pennsylvania Bank and Trust Company, which was named executor and trustee in the will, assumed the administration of the trusts. Since Frank and Eugene were then over 30, however, the shares of the estate appointed to go to them at that age under the will were distributed to them. On November 19, 1938 Frank died, having appointed by will those to take the $20,000 trust, and leaving a widow and three daughters, Eugenia P. Linderman, Helen P. Daniels and Frances
Pleasonton, who are appellants herein. As already noted, the death of Lillie Bowen Fuguet without issue on July 15, 1955 precipitated the application to the court for instructions as to distribution of the principal of the Fuguet trust, determination of which is contested on these appeals.
The County Court construed the reference in the seventh paragraph of the will to "my surviving child or children" as meaning those surviving at the time of Lillie's death, not at the time of the death of the testator, and consequently ruled against any right of Frank's estate or children to participate in the Fuguet trust share. This conclusion would have normally led to distribution in equal shares to the trust for Edith Bowen Baker, the other sister, and to Eugene, the surviving brother. But the court held further that Eugene was not entitled to share in the distribution because the gift over had been stipulated to be in trust for the same uses and purposes as the principal trust of the surviving child and that since the trust for Eugene had terminated when he became 30, long before Lillie's death, he was not one of those specified under the verbiage of the will to participate in a deceased sibling's share. No argument for this last conclusion of the trial court was advanced by any of the parties in the proceedings below. It is defended on this appeal only by the estate of Lillie Bowen Fuguet which will gain (as will Frank's estate) if that result stands and Edith dies without issue. Edith is ...