Price, Gaulkin and Sullivan. The opinion of the court was delivered by Sullivan, J.A.D.
This appeal is from the judgment of the trial court construing certain provisions of the will of William A. Sibson (hereinafter referred to as decedent) who died on August 17, 1955, a resident of Gloucester County. Plaintiff is his widow. Defendants-appellants are the remaindermen under the will.
Plaintiff married the decedent on February 3, 1931. No children were born of this marriage which was decedent's first and plaintiff's second. Plaintiff had no children by her previous marriage. During her marriage to decedent, plaintiff appears to have had no separate estate or income of her own and was entirely dependent on her husband for her support.
The will of decedent had been executed on May 14, 1951. Briefly, it provided in paragraph Fifth that if plaintiff survived decedent for 30 days, a trust was to be established of the residue of the estate, and
"(A) To pay in quarter-annual installments the net income arising from the said residuary estate, hereinafter designated 'principal', to my said wife for as long as she shall live, such payments to commence as soon after my decease as may be reasonably convenient for my Trustee, and further to pay to my said wife, freed and discharged from all trusts and uses, as much of the principal as my Trustee in its sole discretion shall determine necessary for her support, health and maintenance."
Upon the death of plaintiff, "the remaining principal, if any," was to be distributed to decedent's brother and sister or their issue.
Pursuant to the will the trust was set up by defendant-respondent trustee, and the income thereof, approximating $3,750 annually, has been paid to plaintiff. In addition, the trustee has advanced to plaintiff, out of trust principal, the sum of $1,075 for painting and repairs to the house in which plaintiff lives.
In April 1959 plaintiff filed this suit seeking construction of decedent's will and directing the trustee to make payments
to her out of the corpus of the trust. The case was submitted to the trial court on the pleadings, pretrial order and the depositions of plaintiff and her brother-in-law, who handled all of plaintiff's business affairs.
The record indicates the following. At the present time plaintiff is the sole owner of the home in which she lives in Woodbury, New Jersey. The property, which is unencumbered, originally belonged to plaintiff and decedent as tenants by the entirety. Plaintiff also has a life estate in a summer home in Canada. Shortly before decedent's death he gave plaintiff $2,000, and on his death she collected $2,500 on a life insurance policy and also received $21,600 over a period of three years from a group life insurance policy which covered decedent. Plaintiff is the beneficiary of a nontaxable annuity of $1,200 paid by decedent's former employer, and since 1957 has been receiving Social Security payments at a current rate of $83.30 per month. Since decedent's death she has invested $34,242.19 in securities which produce an annual income of $1,200. She also has bank accounts totaling $4,000 and a 1959 automobile purchased for $2,750.
It thus appears that plaintiff is in receipt of independent income of her own approximating $3,400 annually which, together with her income from the trust, gives her a total income of approximately $7,150. Her federal income tax is about $600. Plaintiff's average expenses for the past four years were shown to be $3,300 per year and, while plaintiff asserted that they represented a thriftier manner of living than that to which she was accustomed while her husband was living, the trial court found that her total income from all sources was quite adequate to maintain her according to her former standard of living.
At the trial plaintiff took the position that paragraph Fifth (A) of the will meant that (1) plaintiff was to receive all of the income from the trust, and (2) all of the expenses necessary for plaintiff's support, health and ...