Conford, Kilkenny and Leonard.
Frank G. Thompson died domiciled in Essex County, New Jersey on June 13, 1960 and his will, dated April 28, 1960, provided in part as follows:
"Fifth: I give, devise and bequeath to my wife, Helen Lapp Thompson, if she survives me, an amount equal to fifty percent of my entire estate. The within gift to my wife shall be payable twenty percent one year after my decease, twenty percent two years after my decease, twenty percent three years after my decease, twenty percent four years after my decease, and twenty percent five years after my decease." (Italics ours)
Decedent's estate greatly increased in value between the date of his death and the date when the executor was to make
distribution. The Essex County Court, Probate Division, construed the above testamentary provision to mean that decedent's wife, who survived him, was entitled to "fifty percent of the value of the estate of said testator determined as of the date of distributions to her and not as of the date of the testator's death."
The executor appeals from the County Court judgment so construing the above provision. It maintains that the use of the word "amount" indicates an intent on the testator's part to create a general legacy, and not a specific one, thus requiring calculation of the quantum of the legacy by the designated formula as of the date of testator's death.
The will also bequeathed to the wife all of decedent's household furniture, furnishings, jewelry and automobiles. There were several legacies payable to other named beneficiaries, "without interest," at such time as the executor and trustee, in its discretion, might determine, "but within five years after my decease." The residuary estate was then given to the trustee "to pay the net income therefrom to my wife, Helen Lapp Thompson, during her life, in monthly installments, beginning on the first day of the month next following the date of my death." Upon the wife's death, the income was payable to decedent's mother-in-law during her lifetime. The trustee was given discretionary power to invade the corpus of the trust to maintain the standard of living of the wife and mother-in-law. Upon their deaths, the trustee was directed to use the balance for designated charitable purposes.
"A general legacy is defined as a bequest of personal property payable out of the general assets of the testator's estate rather than from specific property included therein. * * * A specific legacy is defined as a bequest of personal property in specie and not payable from other assets of the estate. * * * It may be all or part of the specified property or fund. * * * In the absence of provision to the contrary, specific legacies of property carry with them all accessions and accretions thereto after the testator's death." Busch v. Plews, 12 N.J. 352, 356 (1953).
As stated in 4 Page on Wills, § 1599, pp. 552-3:
"A general legacy, other than a gift of testator's entire estate or a fraction or residue thereof does not carry income and profits before it is due * * *.
A gift of all of testator's estate, or a fraction thereof, or the residue thereof, passes all income and increment ...