Goldmann, Freund and Foley. The opinion of the court was delivered by Foley, J.A.D.
[78 NJSuper Page 448] This is an appeal from a portion of a judgment of the Superior Court, Chancery Division, declaring that two bequests under the will of Charles Faupel, decedent,
should be paid over to defendant-respondent, and that defendants-appellants have no interest therein. The decision of the court below is reported in Bankers Trust Co. of N.Y. v. Crane , 70 N.J. Super. 447 (Ch. Div. 1961).
The facts are not disputed. In 1925 Bertram Crane married Harriet Crane. Two children, Charles and William, were born of the marriage. In 1946, while they were residents of Illinois, Harriet Crane instituted a suit for separate maintenance and, pending hearing thereon, entered into an agreement with her husband dated March 4, 1946. This agreement recited that the wife agreed to amend the separate maintenance action to one charging desertion; that the husband would file an appearance, answer and stipulation that the matter be heard as a divorce matter; and that in the event a divorce should be granted, the husband would pay in lieu of alimony, stated monthly sums for the maintenance of the wife and two minor children of the marriage. Provisions were also made for the amortization of arrearages in support and the contingency of the wife's remarriage. The agreement went on to provide:
"It is further agreed by and between the parties hereto that the wife shall be entitled to one-half of any property that the husband may acquire by inheritance, devise or bequest and the husband does hereby assign to the wife an undivided one-half interest in any property, whether real or personal or mixed that he may at any time in the future inherit or receive by devise or bequest from his mother or from any other person whatsoever, excepting any future spouse and her relative, and the husband will deliver to the wife the said one-half interest immediately upon his coming into possession of any property as aforesaid." (Emphasis added.)
Harriet Crane amended her suit in accordance with the agreement and on March 12, 1946 a decree of divorce was entered in the Circuit Court of Cook County, Illinois, which provided:
"It is further ordered, adjudged and decreed that plaintiff shall be entitled to one-half (1/2) of any property, real, personal or mixed, that defendant may at any time in the future acquire by inheritance from his mother or from any other person whatsoever, excepting any
future spouse and her relatives, and that the defendant deliver to plaintiff the said one-half (1/2) interest immediately upon his coming into possession of any property as aforesaid." (Emphasis added.)
In 1951 Bertram Crane and Harriet Crane entered into a stipulation which was filed by the Illinois court and provided that Bertram Crane pay $5,000 to Harriet in full settlement of all alimony, past, present, and future. It provided also that the provision of the divorce decree quoted above should remain in full force and effect.
On February 27, 1959 Charles Faupel, Bertram Crane's uncle, died while a resident of Jersey City. His will was duly probated on March 10, 1959. After making certain specific bequests, the will provided that the residuary estate be divided into two equal parts. One-eighth of the first part was bequeathed outright to Bertram Crane. The second part was bequeathed to the executors as trustees, to be set aside as a trust fund, with directions to pay out of income and principal such monies as might be needed for the support, maintenance and medical care of testator's sister Anna F. Crane (Bertram's mother). No payments were to be made from said fund until Anna had exhausted her own money. Upon the death of Anna, the remainder of the trust fund was to be further divided. One-seventh of seven-eighths of the remainder was to be paid to Bertram Crane, or in the event of his death prior to receiving said payment, to his heirs-at-law. The other one-eighth of the remainder was to be held by testator's trustees, income to be paid Anne C. Phillip, testator's nurse, for life. Upon her death, the trustees were to pay over one-seventh of this corpus to Bertram Crane, or in the event of his death prior to receiving the payment, to his heirs-at-law. Anne C. Phillip is still living.
On March 12, 1959 Harriet Crane, Bertram's divorced wife, died intestate 13 days after the death of Charles Faupel. She was survived by Charles and William, her children by her marriage to Bertram Crane. Letters of administration were granted to Charles May by the Probate Court of Cook County, Illinois.
On February 7, 1961 Anna F. Crane, Bertram's mother, died leaving a will which named Bertram as executor.
This is a proceeding by the executors and trustees under the will of Charles Faupel for instructions. They are plaintiffs-respondents while Bertram Crane is the defendant-respondent. Charles and William Crane, sons of Harriet and Bertram, and Charles May, the court-appointed ...