On appeal and cross-appeal from Superior Court, Chancery Division.
For affirmance -- Justices Heher, Wachenfeld, Burling and Proctor. For modification -- Chief Justice Weintraub, and Justices Jacobs and Francis. The opinion of the court was delivered by Burling, J. Weintraub, C.J. (dissenting in part). Jacobs and Francis, JJ., join in this opinion.
[28 NJ Page 485] This is an appeal and cross-appeal from a judgment of the Superior Court, Chancery Division, construing the terms of a will. We certified the cause on our motion while it was pending and yet unheard in the Superior Court, Appellate Division. The parties have agreed on a statement of the facts in lieu of a record. R.R. 1:6-2.
On May 5, 1891 Otto Arens, a resident of Plainfield, New Jersey, executed his last will and testament. The testator's family at the time he made his will consisted of his wife, Mary Louise Arens, and their two children, Siegfried H. Arens, age 14 years and Edith Mary Arens (now Hagedorn) age 10 years.
The testamentary plan was as follows: After making certain specific bequests, the residue of the estate by Article "Third," paragraph "1st," of the will was given in trust to his executors, the income to be paid to his wife for life. In the event of the wife's remarriage the income from two-thirds of the trust was to be distributed equally among the testator's children living at the time "and the lawful issue (if any) of any deceased child per stirpes and not per capita, that is to say to pay to such lawful issue only the portion of such income which its parent would if living have taken, and to continue the payment of such portion to the lawful issue of any child who may die during the life of my Wife leaving such issue," and in default of such issue to distribute the income to any surviving children. In default of all lineal descendants the testator provided that the trustees were to pay the income "to and among my brothers and sisters as well of the half blood as of the whole blood and the lawful issue of any deceased Brother or Sister, excepting the lawful issue of my Widowed Sister Doris per stirpes and not per capita."
On the death of the wife the testator directed by paragraph "2nd" that the corpus be divided into two equal portions. One-half was to be given to his son Siegfried, if he be living, "and if he be dead, then to his lawful issue, if any,". In default of such issue Siegfried's portion was to remain in trust. The remaining portion of the corpus was by Article "Third," paragraph "3d," of the will directed to be held in trust for the benefit of testator's daughter Edith for life and upon her death "then to convey pay over and distribute the whole capital of such remaining part so held in trust with all accumulations, to and among her lawful issue, if any, and in default of such issue, then to
convey and pay over the same to my son Siegfried H. Arens if then living, and if he be dead, then to his lawful issue if any."
By Article "Fourth" of the will, in the event of a complete failure of issue, then the residuary estate was to be divided into nine equal shares -- one share for each of testator's brothers and sisters "and to the lawful issue of any deceased Brother or Sister excepting to the lawful issue of my Sister Doris the share or part which would have been allotted to its parent if then living, and to convey and pay over to each Brother and Sister and to the lawful issue of any deceased brother and sister excepting to my widowed Sister Doris and her lawful issue the whole capital of the share or part so to be allotted to them." The share allotted to testator's sister Doris was to be held in trust, the income to be paid to her for life and upon her death the corpus was to be distributed, "to and among her surviving brothers and Sisters as well as of the half blood as of the whole blood and the lawful issue of any such deceased Brother or Sister per stirpes and not per capita, hereby excepting the children of said Sister Doris or their lawful issue from any part or portion thereof."
The testator died August 26, 1910 and his will was probated by the Surrogate of Union County. His widow received the income of the trust set up pursuant to Article "Third" of the will, for her life. She died on November 25, 1920. Shortly thereafter one-half of the corpus was distributed to testator's son Siegfried H. Arens. The remainder was continued in trust for testator's daughter Edith Arens Hagedorn, who is now 77 years of age and constitutes the estate presently before the court. She is a widow and has no children. Testator's son Siegfried died November 21, 1954, leaving two children, Otto Siegfried Arens, born March 30, 1911, and John Edward Arens, born May 14, 1912. Otto Siegfried Arens has one child, Mary Arens Woolley, born July 26, 1936, and she has one child, Cheryl Ann Woolley, born September 1, 1957. Testator's other grandchild, John Edward Arens, has three children: John
Arens, born December 8, 1937; William Arens, born September 7, 1941, and Barbara Arens, born July 27, 1947. The issue of testator's son Siegfried constitute the class who will in all probability take the remainder in the event of the death of the present life tenant.
The instant action was commenced by the substituted trustee, the Plainfield Trust Company, to have construed the investment powers under Article "Fifth" of the will.
Defendant Mary Louise Arens Woolley, individually and as guardian ad litem of Cheryl Ann Woolley, counterclaimed (1) to compel the trustee to invest in "legal investments"; (2) to diversify the trust portfolio; (3) for a construction of the word "issue" in Article "Third" of the will.
The trial court held that the trustee was not restricted to "legal investments"; that diversification should be decreed, and that the intended meaning of the word "issue" was that distribution of the corpus of the life estate was to be per capita and not per stirpes. John and Otto Arens have appealed from that portion of the determination below relating to the construction of the word "issue," and Mary Louise Arens Woolley has cross-appealed from that portion of the judgment declaring that the trustee is not restricted to "legal investments."
The question raised on the appeal of John and Otto Arens is whether the gift over to the "issue" of the testator's son or daughter, following the termination of the daughter's beneficial life estate under Article "Third," paragraph "3d," of the will, is to be distributed per capita or per stirpes.
Comparatively few doctrines of the common law of this State are as firmly settled as the one which declares that the unqualified word "issue" in a will signifies progeny to the remotest degree and carries with it a rebuttable presumption that the distribution of a testamentary gift shall be per capita. See e.g., In re Wehrhane, 23 N.J. 205 (1957); Stickel v. Douglass, 7 N.J. 274 (1951); Hoyt v. Orcutt, 1 N.J. 454 (1949); Lawrence v. Westfield Trust Company, 1 N.J. Super. 423 (Ch. Div. 1948); Fidelity Union Trust Co. v. Graves, 139 N.J. Eq. 571 (Ch. 1947);
In re Fisler, 133 N.J. Eq. 421 (E. & A. 1942); Dennis v. Dennis, 86 N.J. Eq. 423 (E. & A. 1916); Tantum v. Campbell, 83 N.J. Eq. 361 (Ch. 1914); Security Trust Co. v. Lovett, 78 N.J. Eq. 445 (Ch. 1911); Coyle v. Coyle, 73 N.J. Eq. 528 (Ch. 1907); Inglis v. McCook, 68 N.J. Eq. 27 (Ch. 1904); Weehawken Ferry Co. v. Sisson, 17 N.J. Eq. 475 (E. & A. 1864). Cf. Den ex dem. Rodman's Heirs v. Smith, 2 N.J.L. 7 [ Reprint p. 3] (Sup. Ct. 1806). But cf. N.J.S. 3 A:3 A -1 and 2 (L. 1952, c. 221, p. 756), which provide that in the will of any person dying after the effective date of the act (May 17, 1952), the word "issue," in the absence of an expressed contrary intention, shall be construed as requiring a per stirpes distribution.
"Issue" is a technical term in the legal lexicon -- a word of art, and there is therefore a judicial bias that a scrivener employs it in its precise sense. Context or collateral circumstances may belie the fact that the symbol correctly translates the testator's most probable intention concerning the distribution of ...