On appeal from a judgment of the Superior Court, Appellate Division, whose opinion is reported at 53 N.J. Super. 139.
For affirmance -- Justices Burling, Proctor, Hall and Schettino. For reversal -- Chief Justice Weintraub, and Justices Jacobs and Francis. Francis, J. (dissenting). The Chief Justice and Justice Jacobs have authorized the statement that they join in this dissent.
The judgment is affirmed for the reasons expressed in the opinion of Judge Goldmann in the court below.
FRANCIS, J. (dissenting).
In order to interpret the particular testamentary expression involved in this proceeding, it is necessary to consider a will drawn in 1887 and a codicil made in 1893. Thereafter three additional codicils were executed, one three months later in 1893, and the others
in 1896 and 1897. Obviously, all of the instruments were prepared by an attorney or attorneys for a testatrix who was conscious of her testamentary responsibility. Unfortunately, in spite of the attention devoted to the disposition of her property, the ambiguity which must now be resolved crept into her devolutionary plan. At this late date, 61 years after her death, our effort can be likened only to a search for the needle of intention in a haystack of words. The majority of my colleagues feel that the Appellate Division found the needle. I do not think so.
In the original will, the testatrix divided her residuary estate into seven equal parts. Six of the portions were given outright to her sons and daughters, with the proviso that if any one of them predeceased her, leaving a child or children, that part should pass to the child or in equal shares to the children, if there were more than one. She testated further that if any of her children predeceased her without a child or children, the part should go to her surviving children and the surviving child or children of any deceased child, her surviving children to take equally and the grandchildren to take "per stirpes and not per capita."
The seventh part was placed in trust for her daughter Pauline, she to receive the income therefrom for life and the principal to pass to her child or children. And if any such child or children were dead, leaving a child or children, the "grandchildren" and "great grandchild or children" were to take, the former to share equally and the latter "to take the share the parent would have taken if then living, and in equal shares if more than one."
Throughout the will Mrs. Pistor spoke of children, grandchildren and great grandchildren. In no instance did she write "heir" or "heirs at law." And it is plain that she was aware of the nature of per stirpital distribution among children by representation of a parent. Moreover, it must be noted that she was conscious of the marital status of her children because in the trust referred to above, she declared that the income should be "to the use of my daughter
Pauline, wife of Noel Evrringham Sainsbury, * * * free from the control or interference of her said husband." Later in the first 1893 codicil, when she canceled the bequest of the outright seventh part to her daughter Madelaine, and put it in trust, the same mandate as to Madelaine's husband was inserted with regard to the use of the income. Thus, by language not open to question, husbands and wives of Mrs. Pistor's children and grandchildren were excluded from participation in the corpus of the estate and she inveighed specifically against any interference or control of the income by the husbands of the daughters whose shares were assigned to the trusts.
By the first codicil of 1893, about which the controversy centers, the trust for Pauline's life was continued but the provision for distribution of the corpus on her death to her children or grandchildren was expunged. Instead, the corpus was continued in trust with the specification that upon the death of any of Pauline's children (who would be a grandchild of the testatrix, although not described as such in the ...