Goldmann, Conford and Freund. The opinion of the court was delivered by Goldmann, S.j.a.d.
[58 NJSuper Page 55] Plaintiff appeals from an adverse judgment of the Chancery Division determining that the precatory language appearing in her father's will did not create a trust in her favor.
Testator married Laura Carverry in 1899. She died in 1922, leaving as survivors her husband and a daughter (plaintiff). In 1923 he married defendant, and the issue of that marriage was a daughter, Jeanne Monahan (now Ward). At the time of testator's death on June 24, 1950 plaintiff was 50 years old and her half-sister Jeanne 25. His will, prepared by an attorney and executed on January 10, 1941, is quite brief. After revoking all prior wills, it provided as follows:
"Second I give devise and bequeath all the rest of my property, whether the same be real or personal, or of whatsoever nature or wheresoever situate, or to which I may be entitled fully and completely, to my dearly beloved wife, Mary M. Monahan.
Third It is my wish and desire that my dearly beloved wife always provide for my two beloved daughters Helen C. Cahill and Jeanne F. Monahan."
Defendant widow was appointed sole executrix.
Decedent had operated a masonry business known as Monahan Stone Company (now known as Monahan-McCann Stone Company), of which he owned 499 shares. He also owned stock valued at about $150 in another company. Defendant claims that testator made a valid inter vivos gift of all these shares to her in October 1948, so that they did not become assets of the estate. According to her, the value of the estate was $6,710.69 before administration expenses, debts, inheritance taxes, etc. In March 1952 defendant established a trust of one-half the Monahan-McCann shares for the benefit of Jeanne, appointing herself trustee and income beneficiary for life, with the absolute right to vote the shares so long as she lived. The remaining shares were given to defendant's daughter by a previous marriage, Dorothy McCann, who agreed that she would not transfer, assign or encumber the stock in any way as long as defendant lived, and that defendant would have the right to all income as well as the right to vote the shares for life.
Plaintiff lived with her father and stepmother until she married Dr. Lawrence Cahill in 1928. The marriage was
a failure, and when plaintiff separated from her husband in 1931 she returned to live in her father's home. Soon after the separation she turned to alcohol and the company of companions whom her father considered entirely unfit. He strongly condemned her drinking companions and way of life, but was unsuccessful in correcting her ways. Finally, in 1945 he had her committed to the House of Good Shepherd, in Morristown, N.J. Toward the end of her stay there he wrote her that there were some things he would have to insist on if she expected to be released and return home, since he was getting too old to put up with any more of her "depredations":
"First of all, I want to be sure that you are repentent for all of the wrongs you have done. There is no use for me to go into details telling you of them as you know them all yourself, and they are many and shameful. You must promise Almighty God that you will never associate with the low class of people you have been associating with.
Your so-called friends who were the lowest type that anybody ever knew, only used you for the money you spent on them. Even with all of the money you had to spend you were always in debt. * * *
You are now out of debt and have a nice tidy bank account to your credit; your jewelry is out of the pawn shop, and your income tax is paid.
In her reply plaintiff assured her father that she meant to lead an entirely different life and would do her best to make up for the heartaches and worries she had caused him. She said she no longer had a desire for drinking or smoking. She hoped she would be home shortly and have the opportunity of proving to him that she would stay away "from those who are not for my good."
Soon after this letter plaintiff was released in her father's custody and returned to live with him. Despite her resolutions she resumed her associations and drinking habits.
Finally her father put her out of the house after she had spent some four or five days over the Labor Day weekend with her companions, without communicating with him. Upon hearing of her father's action plaintiff said, "I am very glad to hear that." She went to live with one Van Brunt, and stayed with him until he died shortly after this action was instituted. The two moved from one cheap rooming house or hotel to another, plaintiff paying for the rent, food and other expenses, including alcoholic beverages. During all her years with Van Brunt he did not work, but looked to plaintiff for support. She spent a good deal of her time in saloons and in association with friends for whom she would purchase drinks.
In the period between her separation from her husband and her commitment to the home plaintiff had managed to spend whatever funds she had. This included the principal of a mortgage her father had given her, as well as an income of $60 she received each week, representing $50 support paid by the husband and $10 that came to her from an uncle's estate. She also pawned her jewelry and incurred minor debts. (This explains the reference in her father's letter.) Following her release from the home ...