Price, Gaulkin and Sullivan. The opinion of the court was delivered by Sullivan, J.A.D.
This is a will construction case. It involves the question of whether a testamentary trust may be partially terminated at this time and, if so, to whom should the distribution of the terminated trust corpus be made.
James Moses died a resident of Spring Lake, New Jersey, on October 8, 1920, leaving a will dated May 15, 1918, which has been admitted to probate by the Surrogate of Monmouth County. Decedent was survived by a widow and three daughters, Laura, Ethel and Vera. He was also survived by five grandchildren, two of whom were children of Ethel, the other three being children of Vera. Four of these grandchildren were born prior to the execution of the will.
The will, by paragraph "Third," established a trust of the residue of the estate. Subparagraph 1 of paragraph "Third" directs the trustees to pay an annuity to decedent's widow. She died on September 20, 1935. Subparagraphs 2 and 3 of paragraph "Third," and paragraphs "Fourth" and "Eighth," the provisions of the will pertinent to this inquiry, are as follows:
"2. To divide the rest, residue and remainder of said income into as many equal parts as I shall leave daughters surviving me and daughters who may have died leaving issue surviving me, and to pay over quarterly one of said parts to each of my daughters, and to the issue of a deceased daughter if any such there should be, such issue to take in equal shares the part the mother would have been entitled to if living. This trust shall continue subject to the provisions hereafter contained during the lifetime of my daughter LAURA McD. MOSES.
3. This trust shall terminate at once on the consent in writing of my three daughters, or in case of the death of one of them, on the consent in writing of the other two, and on the filing of such consent in the office of any Surrogate or other probate Court where this Will may be probated.
FOURTH: On the termination of the trust hereinbefore created, whether under Subdivision '2' or under Subdivision '3' of the preceding Paragraph of this Will, I give the principal of said trust fund as follows, viz:
One equal part thereof, I give to each of my then living daughters, and one equal part in equal shares to the descendants of any deceased daughter.
EIGHTH: I have put the bulk of my estate in the hands of trustees because I have felt it could be managed more efficiently and more economically than if distributed at once among my daughters; at the same time I have felt that circumstances might arise which would render a long continuance of the trust undesirable. I hope, however, that my daughters will not avail themselves of the power given them to terminate the trust except they feel such circumstances have arisen."
The oldest daughter, Laura McD. Moses (now Laura M. Brinton), upon whose death the trust ends unless it is sooner terminated, is still alive and is one of the trustees of the trust. Ethel R. Merrill, the second daughter, is still alive and is the other trustee. Vera McF. Chamberlin, the other daughter, died April 3, 1952 survived by three children, Eleanor, Edward and Laura, all of whom are living. Edward Chamberlin has one child. Laura Chamberlin (now Laura Chamberlin Campbell) has four children.
During the widow's lifetime the balance of trust income, and after the widow's death in 1935 the entire trust income, was divided equally among decedent's three daughters. After Vera McF. Chamberlin, one of the daughters, died in 1952 her share of the trust income was paid to her three children. Her grandchildren have not received any distribution of trust income.
By instrument dated September 22, 1958 and filed in the office of the Surrogate of Monmouth County, Laura M. Brinton and Ethel R. Merrill, the two surviving daughters of decedent, consented in writing to a partial ...