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Weiss v. Rheinstein

Decided: June 3, 1958.


Price, Haneman and Schettino.

Per Curiam

[50 NJSuper Page 310] Appeal is from a final judgment of the Superior Court, Chancery Division, awarding the testator's entire interest in Victory Grove, Inc., to plaintiff as trustee for the benefit of defendants. Regina Weiss Rheinstein, testator's niece, and Richard Weiss, testator's nephew. Appellant, a brother of the testator who received 8% of the residue of the estate under the will, appeals.

Plaintiffs took no position here or in the trial court in their present action except to request from the courts an interpretation of a provision of the will dated April 14, 1949 which reads as follows:

"I give, devise and bequeath to my sister, Jean Weiss, as Trustee, all my entire interest, consisting of ten (10) shares of stock, in the Victory Grove, a corporation which owns a certain orange grove in the State of Florida, in trust, as follows. * * *"

There is evidence of a very close and generous relationship between testator and his niece and nephew, the beneficiaries of the trust. They lived in different portions of the same house and testator was a widower with no children of his own.

At the time the will was drawn, and at the time of death, testator owned 22 1/2 shares of the corporation and not the ten shares which is set forth in the will. The testator died on October 7, 1956 and his will was admitted to probate on October 18, 1956. In 1945 three parties, one of whom was the testator, organized the corporation with an authorized capital of 50 shares of no par common stock, of which 30 shares were issued. Ten shares were issued immediately to each one of the three, so that each principal had a 33-1/3% interest in the corporation. In 1946, when differences arose among the three, testator and one of the others purchased the ten shares from the third party and then sold five shares to one Tess Hammer. The two remaining principal stockholders then surrendered their original ten shares and caused the corporation to issue to each, one stock certificate of 22 1/2 shares, thus increasing each one's individual ownership in the corporation to 45% with Tess Hammer owning the remaining 10%.

If the trust is found to be limited to the ten shares, the remaining 12 1/2 shares would devolve by reason of the residuary clause. The plan of the will is as follows: Paragraph third, testator devises his home and its contents and personal belongings to his sister, Jean. Paragraph fourth, made a bequest of the stock in trust to his sister, Jean, for

the benefit of her children. Paragraphs fifth, sixth, seventh and ninth were bequests of $500 each to certain charitable institutions and organizations, and to each of two individuals. Paragraph eighth was a bequest of $1,000 to a charity. By Paragraph tenth, testator disposes of his entire residuary estate, as follows: 25% to his sister Jean, 25% to his sister Rose, 20% to his sister Sara, 10% to his sister Mary, 10% to his sister Hattie, 8% to his brother William, 2% to his brother Michael.

Appellant raised in his answer the proposition that if the 22 1/2 shares were given in trust under paragraph fourth, then the residuary estate, after the payment of state and federal inheritance taxes, would have very little left for distribution, and that that factor would do violence to testator's intent to benefit the residuary legatees. However, he does not raise this contention on appeal.

Appellant contends that the specification of "ten (10) shares" are words of limitation, and that the words "consisting of" are not only descriptive but restrictive of the prior phrase, "all my entire interest." To substantiate this reasoning, appellant cites the following general propositions:

Where there is a clear enumeration of particulars purporting to be designed as qualifications or restrictions of a preceding general description, the words of general bequest must yield. In re Armour's Estate , 11 N.J. 257 (1953); Baker v. Soltau , 94 N.J. Eq. 544, 546 (E. & A. 1923); Griscom v. Evens , 40 N.J.L. 402, 413 (Sup. Ct. 1878), affirmed 42 N.J.L. 579 (E. & A. 1880).

Where two clauses of the will are irreconcilable so that they cannot stand together, the last clause shall prevail, the last words being considered as a subsequent and final intention. Rogers v. Rogers , 49 N.J. Eq. 98, 100 (Ch. ...

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