Goldmann, Conford and Freund. The opinion of the court was delivered by Goldmann, S.j.a.d.
Daisy Harvey Sainsbury appeals from that part of the final judgment entered by the Essex County Court, Probate Division, determining that Wayne Sainsbury Rae and John S. Sainsbury, Jr., are each entitled to half the corpus of the trust estate held by Fidelity Union Trust Company, as substituted trustee of the trust created under paragraph Eleventh of the last will and testament and codicils thereof of Mary M. F. Pistor, deceased, for the benefit of Pauline Sainsbury et al. , and that she, as widow of Noel E. Sainsbury, Pauline's son, is not entitled to share in the distribution of that corpus.
Plaintiff Fidelity Union Trust Company, as substituted trustee, sought approval of its fourth and final account, allowance of commissions for itself and a fee for its attorneys, and directions from the court as to the distribution of the testamentary trust estate. Pauline, decedent's daughter, had married Noel Evrringham Sainsbury, and Noel E. Sainsbury was their son. The defendants are Daisy Harvey Sainsbury, the widow of Noel E. Sainsbury by a third marriage; Wayne Sainsbury Rae, his daughter by a second marriage; and John S. Sainsbury, Jr., the son of John S. Sainsbury, deceased, who in turn was Noel E. Sainsbury's son by a first marriage.
Testatrix died March 26, 1898, a resident of Essex County, N.J., leaving a last will and testament and codicils thereto which were duly admitted to probate by the Essex County Surrogate. The trust estate has been administered in New Jersey by plaintiff since her death. By paragraph Second of her will, testatrix divided her residuary estate, both real
and personal, into seven equal shares. In paragraphs Eleventh and Twelfth she provided as follows:
"Eleventh: As to the remaining equal share or seventh part of my residuary estate, I do give, devise and bequeath the same unto my sons Philip Pistor and William Pistor (the survivor of them or such one of them as shall undertake the execution of this trust provision), in trust to receive the rents, issues and profits thereof and to apply the same to the use of my daughter Pauline, wife of Noel Evrringham Sainsbury, during her natural life, free from the control or interference of her said husband, and without any power on the part of my said daughter to alienate or anticipate the same or any part thereof.
Twelfth: Upon the death of my said daughter Pauline, or upon my death if she shall not survive me, I do give, devise and bequeath said share absolutely unto the child or children of my said daughter then surviving, and to the child or children of such as may then be dead but leaving a child or children then surviving -- such my grandchildren to share equally and my great-grandchild or children, if any, to take the share the parent would have taken if then living, and in equal shares if more than one."
By paragraph Thirteenth testatrix empowered her executor to sell any or all real estate which she might own at the time of her death, but she did not order the sale.
On August 5, 1893 decedent executed the first of four codicils, and in paragraph Third thereof declared:
"* * * I do further cancel and annul Clause Twelfth of my said will, and direct and provide in the stead thereof that any share which my said daughter Pauline's children might otherwise receive thereunder shall be divided into as many equal portions as there shall be children of her or me surviving, as the case may be, and the portions of such of said children as shall be or have been living at the time of my death be held in trust by my said trustees and the rents, issues and profits thereof applied to the use of each such child for life, and on its death I do give its said share absolutely to its heirs at law, equally, per stirpes and not per capita , the share of any such child of my said daughter born after my decease, I give absolutely to such child, if any." (Italics ours.)
Philip Pistor and William Pistor refused to act as trustees under paragraph Eleventh. The New York Life Insurance and Trust Company, designated as successor trustee under the fourth codicil executed June 27, 1897, also declined to
act. Fidelity Union Trust Company (formerly Fidelity Trust Company) was thereupon appointed substituted trustee of the trust created under paragraph Eleventh and the codicils for the benefit of Pauline Sainsbury et al. , by order of the Essex County Orphans Court ...