The parties to this proceeding are tenants in common of parcels of real estate located in Newark, New Jersey, which they took as remaindermen under the will of Antonio Giuliano. He died in 1928. They have contracted to sell one of the properties. The sale was approved and confirmed by an order of this court entered August 6, 1959. In this summary proceeding they now seek an adjudication that they have a good and marketable title to all the properties free from any charge imposed thereon under the will of Antonio Giuliano.
Testator's will was construed in West Side Trust Co. v. Giuliano , 106 N.J. Eq. 475 (Ch. 1930), where it was held that the will gave Pasquale Giuliano, the testator's nephew, a life interest in the residue of the estate; the remainder was to pass to Pasquale's issue if they survived him. Pasquale died in 1953 survived by issue, the parties to this litigation. The executor, West Side Trust Company, was discharged in 1951.
The present proceeding involves a construction of paragraphs Thirteenth and Fourteenth of the will which read as follows:
"THIRTEENTH: I hereby order and direct my said nephew, PASQUALE GIULIANO, to expend at least the sum of Five Thousand Dollars and not more than the sum of Ten Thousand Dollars for the erection of a mausoleum, which said mausoleum shall contain at least six and not more than eight vaults, niches or compartments.
It is my earnest wish and desire, and I hereby order and direct my said nephew, PASQUALE GIULIANO, to have removed from her present resting place the remains of my first wife, MARGHERITE GIULIANO, and place them, together with my remains, in the vaults, niches or compartments respectively to be reserved therefor in said mausoleum.
FOURTEENTH: In the event of the death of my said nephew, PASQUALE GIULIANO, then and in that event I hereby order and direct my Executor hereinafter named to carry out the provisions of paragraph thirteen of this my will."
The mausoleum was never erected. The personal property in Antonio's estate had an inventory value in 1929 of $25,082.96, but when liquidated in 1932 only $16,539.02 was realized. Taxes, legacies, legal fees and the testator's debts reduced this sum to $3,242.72, from which counsel fees and executor's commissions were to be deducted. Thus, there was never enough cash or personal property from which cash might be available to construct the mausoleum.
The evidence showed that the present minimum cost of erecting the type of mausoleum specified in the will is $19,600, plus the cost of the cemetery plot estimated between $2,000 and $2,500. The cost of perpetual care of the mausoleum, if desired, would add another 10% to 15% to the total. A two-niche mausoleum and plot would cost over $15,000, exclusive of maintenance charges.
Plaintiffs seek judgment that the directions in paragraph Thirteenth of the will are impossible to perform; that the premises in question and any other real property owned by the testator and passing under the will be freed of any charge, lien, right or claim for the erection of the mausoleum; that they have a good marketable title without any charge imposed by paragraph Thirteenth; and that the court direct the setting aside of enough money to erect suitable headstones.
Vice-Chancellor Backes in West Side Trust Co. v. Giuliano, supra , 106 N.J. Eq. , at page 478 said:
"The provision in the will that the nephew Pasquale Giuliano expend not less than $5,000 nor more than $10,000 for a mausoleum was not intended to charge him personally with the obligation and to make it a condition to his gift. The inadequacy of his life interest alone forbids that interpretation. The testator intended to empower him to bind his estate and confided to his judgment the manner of fulfilling this ...