Mills, J.c.c. (temporarily assigned).
This is an action for declaratory judgment for an apportionment of the proceeds of sale of a right of way among vested remainderman and life tenants.
Anna Caroline Drake Osborne died a resident of Morris County, leaving a last will and testament probated before the Surrogate of that county. In and by the third paragraph of her will defendant Selwyn H. Osborne was devised a life estate in certain real estate known as the "Osborne Upper Farm," on the understanding that Doris D. Osborne may enjoy the said "Upper Farm" with him. The will further provided
that if Selwyn predeceased Doris, then the trustee was to rent "Upper Farm" and use the net income for her support, maintenance and medical care for her life. Upon the death of both Selwyn H. Osborne and Doris, "Upper Farm" was devised to plaintiff, its successors and assigns forever.
On August 28, 1962 plaintiff and defendants granted a right of way across said "Upper Farm" to a power company for $10,250. Said sum is in escrow pending the outcome of this action.
Selwyn H. Osborne was born September 22, 1901 and is 62 years of age. He is average in health and life expectancy. Doris D. Osborne was born on May 24, 1918 and is 45 years of age. She is an incompetent and has been confined for many years in the New Jersey State Hospital at Greystone Park.
The above facts are not in dispute. The matter was pretried, and the issues raised were: (1) is Doris a necessary party, and (2) should the proceeds of the sale of the right of way be apportioned among the parties.
Briefs were filed and the matter was orally argued.
Defendant Trust Company argues that Doris is a necessary party defendant, and since she is incompetent, a guardian ad litem should be appointed to protect her interest. No rule, statute or case is cited in support of this contention. The Trust Company seeks allowance for counsel fees and real estate appraisal fees. The request is based on the necessity to appraise the damage and on the long negotiations between counsel and the power company to obtain $10,500 for the right of way. Plaintiff participated in the negotiations and raises no question of the price -- nor does the defendant Selwyn H. Osborne.
The question of a beneficiary as a necessary party is determined by whether the trustee may reasonably be regarded as the representative of the beneficiary. A party is not necessary in a suit where neither the administration nor the construction of the will nor the rights between the trustee and the cestuis que trust are in dispute. Stevens v. Bosch , 54 N.J. Eq. 59
(Ch. 1895). Doris D. Osborne was not a necessary party; she was adequately represented at the sale. No dispute is present concerning the administration of her trust ...