Simmill, J.c.c. (temporarily assigned).
Plaintiff herein, as testamentary trustee under the last will and testament of Lena Egenolf, deceased, has instituted this proceeding for a construction of the will and for the court's instructions as to the trust established thereby.
Lena Egenolf, the decedent, died on May 15, 1942, leaving a last will and testament dated November 2, 1938. Paragraphs 4 and 5 of the will are as follows:
"Fourth: All the rest, residue and remainder of my estate, both real and personal, of whatsoever the same may consist and wheresoever situate, I give, devise and bequeath unto the Fidelity Union Trust Company of Newark, N.J., Arthur M. Birdsall, and my sister, Kathrine Schmidt, in trust, the same to be safely invested and reinvested as provided by law for the investment of trust funds and the income therefrom to be paid monthly to my sister, Kathrine Schmidt during her lifetime. I further direct that should my sister's urgent necessities require, then my trustees shall pay whatever is necessary out of the principal of my estate to meet any unusual, unexpected or urgent necessity of my said sister; * * *
Fifth: From and after the death of my said sister, Kathrine Schmidt, or if she should predecease me, then, on my death, I give the principal of the said trust fund herein provided for the benefit of my said sister, as follows:
All the rest, residue and remainder of the principal remaining in the said trust fund after the specific bequests mentioned in this
clause of my will, I direct shall be held in trust by the said Fidelity Union Trust Company of Newark, N.J., and Arthur M. Birdsall, the surviving trustees and the income therefrom be paid monthly to the Egenolf Day Nursery of Elizabeth, N.J. to be applied towards its rent, expenses, maintenance and support. Should the said nursery be abandoned or cease to function or become extinct during the lifetime of my next of kin who are living at the time of my decease, or during the lifetime of any of their children, then and in those events I give the principal remaining in the said trust fund for the benefit of the Egenolf Day Nursery to my said next of kin and their children according to the statutes on descent and distribution. It is, however, my sincere desire and I know it was the desire of my late husband that the said Egenolf Day Nursery should continue to function and to grow from year to year for the benefit of those who may have access to the uses for which it was established. Should said Egenolf Day Nursery continue to function until after the death of my next of kin living at the time of my decease and their children, then and in that event I direct my trustees to pay the principal sum of my said trust fund to the Egenolf Day Nursery absolutely."
The decedent had no children. Her husband and her parents predeceased her. She never had any brothers or sisters except Katherine Schmidt (designated in the will as Kathrine Schmidt), who was born on November 11, 1863 and died on July 1, 1949. Katherine Schmidt was single and had no children born to or adopted by her. The decedent's other next of kin living at the time of her demise are cousins once and twice removed and other distant relatives, all of whom are defendants to this suit.
Subsequent to decedent's death, plaintiff paid the income from the testamentary trust to Katherine Schmidt. Following the death of Katherine Schmidt the plaintiff-trustee has paid and is presently paying the income to defendant Egenolf Day Nursery of Elizabeth, New Jersey (now Egenolf Day Nursery Association of Elizabeth, New Jersey). Said nursery has continued uninterruptedly to function and is actively engaged in the charitable purposes for which it was established.
The plaintiff first seeks a construction of the will and advice as to whether the trust terminated on the death of Katherine Schmidt because Katherine Schmidt was the
testatrix's sole "next of kin living at the time of my decease." In order to answer this question the court's first duty is to determine the intent of the testatrix, an intent to be drawn from the language of the will as written taken in context and illuminated by the surrounding facts and circumstances. In re Armour's Estate , 11 N.J. 257, 271 (1953); Burlington County Trust Co. v. Di Castelcicala , 2 N.J. 214 (1949). The court's main concern is to determine intent, not so much from what the testatrix meant to say as it is to determine what she meant by what she did say. New Jersey ...