Goldmann, Kilkenny and Collester. The opinion of the court was delivered by Collester, J.A.D.
This is an appeal from a judgment of the Chancery Division construing a deed of trust executed by William Childs, now deceased, holding that the trust had terminated and that the trustee should now pay over the corpus and undistributed income to the beneficiaries of the corpus , four charitable organizations.
An appeal was taken from said judgment by defendants Catherine Murray Hooper, Harriet Hooper Reed and Victoria Moran Sargent, three of the five surviving income beneficiaries named pursuant to the provisions of the deed of trust. An appeal was also taken by defendants Agnes M. Tuthill and Alexander McAliley, beneficiaries of the estate of Elsie P. McAliley (who was one of eight residuary legatees under the will of William Childs), and Howard S. Tuthill, as executor of the estate of Elsie P. McAliley. The appeals have been consolidated.
The respondents are plaintiff Trust Company of Morris County (formerly Morristown Trust Company), the trustee named in the deed of trust, and four charitable institutions, the defendants Somerset Hospital, Morristown Memorial Hospital, All Souls Hospital and Bonnie Brae Farm for Boys. The four charities receive the corpus of the trust upon its termination. Respondent Attorney General of New Jersey was joined as a party defendant below because charitable trusts are involved.
The facts are not in dispute. William Childs of Bernardsville, New Jersey, established an inter vivos trust on December 9, 1937, by exercising a deed of trust. It provided, inter alia , as follows:
"First: Trustee * * * shall pay over the net income in the following manner:
A. To and among the following relatives and friends of the Settlor, or the survivor of them, any and all amounts which the Settlor during his lifetime shall, in his absolute discretion, designate, and after the death of the Settlor, to and among the said following beneficiaries, or the survivor of them, in such amounts as Settlor's wife, Victoria Ludgate Childs, and Trustee shall in their absolute discretion agree to be proper for the support and maintenance of said following beneficiaries: [Nine beneficiaries are then named.]"
Under the terms of Article First, paragraph B, the settlor was to receive the balance of the income after distribution under paragraph A, above, as he requested it; and after his death such undistributed income was to be paid to the settlor's wife as she requested it.
Paragraph C provided that upon the death of both the settlor and his wife, the trustee was authorized to make distribution of the income to the surviving beneficiaries named in paragraph A, in such amounts as it deemed proper, with the balance thereof to go to the four charitable institutions, which were also the ultimate beneficiaries of the corpus.
William Childs died on May 22, 1938, five months after he executed the deed of trust, without having directed income payments to be made to the potential income beneficiaries
named in Article First (A) and without naming any additional income beneficiaries as provided for under ...