The plaintiff trustee has brought this action for construction of the second paragraph of the last will and testament of Gustav Haug, Sr. The defendants are the present infant beneficiaries of these provisions and persons not in being, who are represented separately by guardians ad litem.
Gustav Haug, Sr., a resident of Woodbury, New Jersey, died testate on May 17, 1956. His last will and testament,
dated November 15, 1954, disposed of his estate in the following manner:
"Second: All the rest, residue and remainder of my estate, real, personal and mixed, of whatever nature and wheresoever situate which I may own or have the right to dispose of at the time of my decease, I give, devise and bequeath as follows:
(a) One-half thereof to my daughter, Marianne DeSanto, absolutely and in fee.
(b) One-half thereof to my grandchildren, Cheril Haug and Rudolph Haug, the children of my son Rudolph Haug, or any child hereafter born to him, or the survivor or survivors of them , equally share and share alike; provided, however, that should either of my said grandchildren be a minor at the time of my decease, then and in that event only, I give, devise and bequeath to my Trustee hereinafter named, the share of said minor child, in trust nevertheless, for the following uses and purposes:
(1) To invest, reinvest, and keep the same invested and collect the income therefrom and to pay the same in convenient installments to my said grandchild, during his or her minority. I further direct that my said trustee may in her discretion pay said income to my said grandchild, or to others for his or her support, maintenance, general welfare, comfort, education and emergency expenses without the necessity for the appointment of a guardian for said minor grandchild, and without application to any court for authority so to do, and the receipt of said grandchild or others for his or her use shall be a good and sufficient discharge of my said trustee. My said trustee is authorized and directed to pay to said grandchild or to others for his or her use out of the principal of said trust fund such additional sum or sums as she, in her sole discretion, shall deem necessary for the support, maintenance, general welfare, comfort, education and emergency expenses of said minor grandchild. * * *" (Emphasis added.)
On the date of this will the testator had two living grandchildren, Rudolph Haug, Jr., born December 3, 1942, and Cheril Ann Haug, born August 29, 1946. Prior to the testator's death a third grandchild, Kenneth Haug, was born October 7, 1955. All three grandchildren along with their father, Rudolph Haug, Sr., are still living today. As of this date no other children have been born to Rudolph Haug, Sr.
Rudolph Haug, Jr., presently 18 years of age, has requested an advance portion of his share of the trust fund
for his educational expenses. The plaintiff trustee, having been advised by counsel that the number of beneficiaries entitled to share in this trust is determined at the testator's death, now seeks a determination from this court whether the three children of Rudolph Haug, Sr., who were living at ...