Plaintiff as executor under the last will and testament of C. Edward McKinney, Jr., deceased, files this complaint for construction of certain paragraphs of the said will and for instructions directing the administration of the estate respecting the provisions of paragraphs Thirtieth and Thirty-third thereof. The testator died on October 21, 1957, a resident of Essex County, New Jersey, and his will and codicil were probated on November 6, 1957 in said county with letters testamentary issued to the plaintiff, who undertook administration and continues as executor.
The pertinent paragraphs are fully set forth below:
"THIRTIETH: I give and bequeath the sum of Fifty Thousand Dollars ($50,000.) to Amherst College, an institution of learning, situate at Amherst, Massachusetts, to be held in trust to be used as a scholarship loan fund for deserving American born, Protestant, Gentile boys of good moral repute, not given to gambling, smoking, drinking or similar acts. (It being my thought that if a young man has enough funds to allow the waste of smoking, he certainly does not need help.) The money loaned from said fund is to be repaid to the fund at the earliest moment so that others may benefit from its use.
THIRTY-THIRD: All the rest, residue and remainder of my estate, real, personal and mixed, of whatsoever kind and wheresoever situate, of which I shall die seized or possessed, I give devise and bequeath unto Amherst College aforesaid to be held on the same trusts as mentioned in paragraph Thirtieth aforesaid." (Italics added)
Named as defendants herein are The Trustees of Amherst College (called Amherst hereafter), the Attorney General of the State of New Jersey (called State hereafter), Alice J. Stevens, Florence Peep and Albert Hughey (called Kinfolk hereafter).
Plaintiff's action has direct concern with a forced dilemmatic involution caused by an assumed interpretation on the part of Amherst under Section 6 of its charter in language as follows:
"Sec. 6. And be it further enacted, That no Instructor in said College shall ever be required by the Trustees to profess any particular
religious opinions, as a test of office; and no student shall be refused admission to, or denied any of the privileges , honors, or degrees of said College, on account of the religious opinions he may entertain." (Italics added.)
By virtue of the aforestated provision Amherst adopted the following resolution:
"RESOLVED, that Amherst College declines to accept the legacy and the residue under the will of C. Edward McKinney, Jr., upon conditions which will prevent the use of the scholarship loan fund for the benefit of any of its students on religious grounds; but it will accept the same if it will not be so restricted in the use of the fund."
In the light of the aforementioned position Amherst by its answer seeks an adjudication that the classifying words, "Protestant" and "Gentile," be excluded as being discriminatory by statute (N.J.S.A. 18:25-1 et seq.), or as being contrary to public policy. In such event said defendant purposes that the court invoke the cy pres doctrine with favorable effect to award the pertinent trust bequests to Amherst to be functioned in all other respects as declared by the testator.
State as an indispensable party to a cause involving eleemosynary institutions, by its answer, joins with plaintiff for such judicial construction and direction which will best serve the public interest respecting the bequests herein.
Kinfolk by answer, likewise acceding to the necessity of judicial action as aforesaid, urge that the declination by Amherst effectuates a failure of the testamentary trust with the result that plaintiff's testator died intestate as to the questioned funds which should become their property by way of descent and distribution under N.J.S. 3 A:4-5.
It should be noted here that at the hearing it was shown defendants Albert Hughey and Florence Peep are brother and sister and first cousins of testator, being children of a sister of testator's father; and that defendant Alice J. Stevens is a cousin once removed, being a first ...