Goldmann, Freund and Conford. The opinion of the court was delivered by Goldmann, S.j.a.d.
Eileen Schmidt, widow of Alfred Schmidt and one of the two executors under his last will, appeals in her individual capacity from a judgment of the Hudson County Court, Probate Division, determining that decedent died intestate as to $24,000 in cash found in his safe deposit box after his death, and ordering the executors to administer that fund as intestate property.
Alfred Schmidt died March 15, 1954. His will, dated December 18, 1953, was admitted to probate and letters testamentary issued to Hudson Trust Company and the widow, who were named executors and trustees under the will. Among decedent's assets the executors found $24,000 in currency in a safe deposit box at Hudson Trust Company. Other assets were deposits in bank accounts, tangible personalty, stocks and bonds, choses in action and realty. Estate assets totalled $180,447, exclusive of realty.
Paragraph First of the will directed the executors to pay all just debts and funeral expenses, "first, from the cash that I might have in any bank account or bank accounts and if the cash is insufficient, then from such stocks and bonds of which I might die seized, using only as a last resort the real estate and stock in the Weehawken Engineering
Company of which I might die seized." By paragraph Second testator bequeathed to his wife "the remainder of any cash in any bank account or bank accounts" remaining after payment of debts, funeral expenses and administration expenses, together with all of his "personal effects, to wit, household furnishings, jewelry, clothing and any automobile or automobiles," and his stock in the Weehawken Engineering Company. Paragraph Third devised all the real estate to the widow.
By paragraph Fourth decedent left all his stocks and bonds remaining after payment of debts, funeral expenses and administration expenses, in trust, the income therefrom to be paid to the wife for her support and the support and maintenance of decedent's son Alfred, Jr., until he reached the age of 25, at which time the trustees were to deliver half the trust corpus to the son in kind. They were to continue holding the remaining one-half, the income to go to the wife for life or until the son became 30 years old, whichever event happened last, at which time the trustees were to deliver the balance of the trust corpus to the son. The will provided that if the wife predeceased testator or died at any time before Alfred, Jr., became 30 years old, the trustees were to pay the income to the son for the periods referred to. If the son died subsequent to testator and before the trust corpus was turned over to him, then the corpus was to be given to the wife, if living. In the event of the son having died before distribution of the corpus , and the wife having predeceased the son, then the corpus was to go to testator's stepdaughter, Joy Campbell.
Paragraph Sixth empowered the trustees, after distribution of half the trust corpus to the son at age 25, to invade the corpus to pay any unusual hospital or medical bills of the wife and to supplement her trust income and income from other sources, if the same appeared to be insufficient, to permit her to live "in the station of life we are now living in."
The will contained no residuary clause.
On November 4, 1955 the executors filed a complaint in two counts in the Hudson County Court, Probate Division.
The first count sought allowance of their first intermediate account, and named the widow, the son Alfred, and testator's stepdaughter Joy Campbell, as all persons interested in the account. The second count recited the discovery of the $24,000 in cash and that the widow claimed this money as part of the cash bequeathed to her under paragraph Second of the will. Plaintiffs alleged they were uncertain as to whom to distribute the $24,000 and demanded judgment under the second count directing distribution of the estate in their hands.
Notice that the account would be reported for settlement and application made for directions as to the distribution of the estate in accordance with the terms of the will, was given to the three named beneficiaries. Thereafter, on December 20, 1955, the County Court entered judgment allowing the account and reciting that there remained in the accountants' hands a balance of $131,181.70 (subject to fees) to be disposed of according to law. Disposition of the second count of the complaint seeking instructions as to distribution was to await the further order of the court.
The County Court had in the meantime appointed Leon M. Rosen, Esq., as guardian ad litem for the infants, Alfred, Jr., and Joy Campbell, then respectively 3 and 15 years of age. He reported that in the light of his examination of the law, as set forth in a memorandum attached to the report, it was his opinion that testator had died intestate as to the $24,000 found in the safe deposit box and that this money should be ...