[71 NJSuper Page 308] Mary W. Gibb, plaintiff, brings this action as executrix of the estate of Margaret W. Campbell to seek the advice and direction of the court as to the disposition of the residue of the estate. Margaret W. Campbell
died on October 19, 1959, leaving her residuary estate, after the payment of debts, to her daughter Margaret C. Sayre. Mrs. Sayre died on November 9, 1959, leaving a will dated May 27, 1958, in which she bequeathed her entire estate to her husband Edward L. Sayre if he should survive her.
On May 27, 1958 when she made her will, Mrs. Sayre was childless. However, on March 23, 1959, a son Edward L. Sayre was born to her and her husband Edward L. Sayre. Mrs. Sayre was survived by both her son and husband.
The pertinent parts of Mrs. Sayre's will are as follows:
" SECOND: (a) All of the rest, residue and remainder of my estate, of whatsoever kind and wheresoever situate, which at my death I may own, or to which I may be in any way entitled, I give, devise and bequeath to my husband, EDWARD L. SAYRE, TO HAVE AND TO HOLD the same unto his own use, absolutely and forever.
(b) Should my said husband die before me, or should we both die as the result of a common accident or disaster, then in either of such cases, I give, devise and bequeath all of said rest, residue and remainder of my estate to any child or children who may survive me. In case there is no child or children surviving me, I direct that the same be divided into Two (2) equal shares or parts, and I give, devise and bequeath One (1) of said shares or parts to my mother, MARGARET W. CAMPBELL, and the remaining share or part to my sister-in-law, MIRIAM E. SAYRE."
Plaintiff questions whether the will of Margaret C. Sayre is valid under N.J.S. 3A:3-10. She seeks advice as to whom she should deliver the funds in her hands as executrix of the estate of Margaret W. Campbell.
If the will of Margaret C. Sayre is valid the funds should be paid over to the executor of the estate, Edward L. Sayre. If the will is void, however, delivery of the funds will have to await the appointment and qualification of an administrator.
The husband of Mrs. Sayre, Edward L. Sayre, appears individually and as executor of the estate of his wife asserting that the will of his late wife is valid and claiming the funds. The son of Mrs. Sayre, Edward L. Sayre, Jr., appears
by a court appointed guardian ad litem who asserts that the will is void and claims an intestate share of Mrs. Sayre's estate.
The factual situation contemplated by the statute appears to exist in this case. Mrs. Sayre had no issue when she executed her will but she ...