Goldmann, Foley and Collester. The opinion of the court was delivered by Goldmann, S.j.a.d.
[67 NJSuper Page 567] Fidelity Union Trust Company, in its three-fold capacity as trustee under the last will and testament of Peter F. Flood, administrator c.t.a. of the estate of Elizabeth G. Flood, and administrator of the estate of Mabel G. Crossman, brought this action in the Chancery
Division seeking construction of the will of Peter F. Flood and instructions as to payment and distribution of income and principal of the trust he created.
The facts are not in dispute. Peter F. Flood died on April 5, 1906 and his will was duly probated. The pertinent sections of the will provide:
"2nd., Upon the death of my wife Elizabeth Gertrude Flood, and immediately thereafter, to pay one fourth of the rents, income, issues and profits of my estate to each of my four daughters, viz: Mabel Gertrude Crossman, Margaret Maud Flood, Edith Adeline Cavanagh and Grace Elizabeth Robert, for and during the term of her natural life.
3rd., Upon the death of any one of my said daughters leaving issue her surviving, to pay to such issue, the rents, issues, profits and income to which the parent of such issue would be entitled if living, during his, her or their minority, and until he, she or they attain the age of twenty-one years.
4th., Upon the child or children of any of my daughters attaining the age of twenty-one years to pay to such child or children the one fourth of, if one, or the share of the one fourth of my estate, if more than one, for his, her or their use absolutely and forever.
5th., Upon the marriage of my daughter Margaret Maud Flood, it is my wish and I do hereby order my Executors to pay over to her, out of the principal sum of my estate, the sum of Five Thousand Dollars ($5000.) upon her wedding day.
Third: -- In the event of the death of any one of my daughters without leaving issue her surviving, it is my will and I direct that the one-fourth share of the income bequeathed to each, shall be paid to the surviving daughter or daughters, in equal shares, and in the event of the death of any one of the children of any one of my daughters, that the share of the one-fourth of the income of my estate of such deceased child shall be paid to the surviving brothers and sisters of such deceased child, and in the event of the death of all the children of any one of my daughters before attaining the age of twenty-one years, without leaving lawful issue, that then the share which such child or children would have received shall be paid to the child or children of any one or all of the surviving of my said daughters."
Fidelity Union Trust Company is now administering the trust as sole trustee.
Peter F. Flood was survived by his widow Elizabeth G. Flood, and four daughters, Mabel G. Crossman, Margaret M. Flood, Edith A. Cavanagh and Grace F. Robert. Elizabeth G. Flood died on February 20, 1931. Plaintiff bank is administrator c.t.a. of her estate.
On March 10, 1931 Mabel G. Crossman died intestate, survived by her son, Peter F. Crossman, then over 21. Plaintiff was appointed her administrator. Pursuant to paragraph Second, clause 4, the trustee paid one-quarter of the corpus to Peter.
Margaret M. Flood died intestate on June 8, 1936, unmarried and without issue, leaving surviving her sisters Edith and Grace, and her nephew Peter. Edith A. Cavanagh was appointed administratrix of her estate.
On July 16, 1958 Edith A. Cavanagh died without issue surviving. Defendant Edward F. Cavanagh, Jr. was appointed her executor.
Grace F. Robert, the fourth and last of the daughters, died on September 24, 1959, while this action was pending, survived by her only child, defendant Henry F. Robert, then over 21, who was appointed her executor.
Plaintiff, as trustee of testator's residuary estate, paid the income therefrom as follows: (1) from February 20, 1931 to March 10, 1931, to the four daughters, Mabel, Margaret, Edith and Grace, in equal shares, pursuant to paragraph Second, clause 2, of testator's will; (2) from March 10, 1931 to June 8, 1936, to Margaret, Edith and Grace in equal shares, pursuant to paragraph Second, clauses 2 and 4; (3) and from June 8, 1936 to July 16, 1958, to Edith and Grace in equal shares, pursuant to paragraph Second, clause 2, and paragraph Third of the will.
Thus, when Mabel died each of her sisters received one-third the income of the trust. When Margaret died, her sisters Edith and Grace continued to get their one-third of the income, plus one-half of Margaret's one-third. It is conceded by all parties that Grace, the last of the sisters, is
entitled to five-sixths of the trust income accruing from July 16, 1958, when Edith died, until September 24, 1959, when she died. This five-sixths share is arrived at by adding to Grace's three-sixths share received after Margaret's death, the one-third (or two-sixths) share which Edith had been receiving after Mabel died. The controversy as to income centers upon the disposition of the one-sixth share of income which Edith received from Margaret after the latter's death. The question is: Did this share accrue to Edith's estate, or did it pass to Grace under the will of Peter F. Flood?
When Grace died, her son Henry became entitled to a one-fourth share of the original trust corpus because he was over 21. Thus, one-half of the original corpus is accounted for: Peter F. Crossman had already received one-fourth and Henry's right to one-fourth is not questioned. The dispute arises as to the disposition of the remaining one-half of corpus which has not been disposed of because Margaret and Edith died without leaving issue.
In short, the construction of the will involves two disputed questions: (1) the disposition of the remaining one-half of corpus, and (2) whether Grace was entitled to the one-sixth share of income which Edith received from Margaret, or whether this one-sixth share accrued to Edith's estate.
The trial court held: (1) paragraph Third of the will deals solely with income, and hence the one-half share of the corpus remaining must pass by intestacy, and (2) the one-sixth share of income accrued to Edith's estate and therefore did not pass to Grace. Fidelity Union Trust Co. v. Cavanagh , 61 N.J. Super. 96 (Ch. Div. 1960).
Defendant Henry F. Robert appeals from the judgment, contending that (1) the final clause of paragraph Third:
"* * * and in the event of the death of all the children of any one of my daughters before attaining the age of twenty-one years, without leaving lawful issue, that then the share which such child or children would have received shall be paid to the child or children of any one or all of the surviving of my said daughters." (Italics ours)
should be construed as passing the remaining one-half of the original corpus to him as the only child of the daughter (Grace) surviving on the death of Margaret and Edith without issue them surviving; or (2) in the alternative, that if the word "surviving" is to be read as meaning "other," he is entitled to one-fourth of the original corpus, the other one-fourth passing to Peter; and (3) the one-sixth share of income did not accrue to Edith's estate but passed to Grace.
Although defendant Peter F. Crossman did not appeal from the judgment below, he, too, argues that the final clause of paragraph Third passed principal as well as income, but urges that the word "surviving" should be interpreted to mean "other," thereby entitling him to an additional one-fourth share of the original corpus. Plaintiff bank and defendant Edward F. Cavanagh, Jr., as executor of Edith Flood Cavanagh's estate, argue that the judgment of the trial court was correct.
It is familiar law that in construing a will the function of the court is to ascertain and give effect to the intent of the testator. That intent is to be drawn from the language of the entire will as illuminated by the surrounding facts and circumstances existing at the date of the execution. In re Armour , 11 N.J. 257, 271 (1953); Burlington County Trust Co. v. DiCastelcicala , 2 N.J. 214, 218 (1949); 3 Restatement, Property , § 242, p. 1196 (1940).
As was said in Murphy v. Murphy , 118 N.J. Eq. 108, 112-113 (Ch. 1935), affirmed per curiam 119 N.J. Eq. 83 (E. & A. 1935):
"The meaning and intention of the testator must be determined, not by fixing the attention on single words in the will, but by considering the entire will and the surroundings of the testator when he executed the will, and by ascribing to him, so far as his language permits, the common impulses of our nature. Torrey v. Torrey , 70 N.J.L. 672." (Italics ours)
In Bank of New York v. Black , 26 N.J. 276 (1958), the issue before the court was whether a residuary bequest made by the testatrix to her daughter "of all my estate" was intended to pass property which was not part of the estate but over which she had a general power of appointment. The Supreme Court held that testatrix' probable intention was to have the daughter take the property encompassed by the power. With respect to the quantum of proof needed to establish the requisite intent to exercise the power, the court said:
"We do not think it is necessary for the appellant to present so forceful and compelling a case that it is impossible to form a rational supposition contrary to her contention. The object of our investigation is to determine the probable intent of the testatrix by a preponderance of the evidence and to carry it out in accordance with her wishes even though they be imperfectly expressed. We do what elemental justice and fundamental fairness demand under the necessitous circumstances. * * *" (at pages 286-287)
The court then quoted with approval from the concurring opinion of Judge Clapp in In re Klein , 36 N.J. Super. 407, 419-420 ...