For reversal and remandment -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall and Schettino. For affirmance -- None. The opinion of the court was delivered by Hall, J.
This will construction case concerns the devolution of the remainder interest in the residuary trust under the testamentary estate of Charles F. Morton. The action was instituted by the trustees, after the death of the life beneficiary, to obtain the instructions of the court.
The problem is the usual one of the testator's intention. Beyond the will itself, obviously prepared by a lawyer, we have no extrinsic evidence to aid us except some family history. Mr. Morton executed his will in 1946. He was then in his early seventies, as was his wife, Mary. They had had two
children, Eleanor Morton Hansen and Adeline Morton Nelson. Eleanor had died in 1943, leaving three children, Gladys M. Braadt, Shirley L. Young and Henry G. Hansen, Jr., all of whom were born prior to their grandfather's making of his will. Adeline was living then, but died some years before her father. She left four children, Mildred Nelson Adams, Marion Louise Diehl, Robert Neal Nelson and Edward Nelson. Mr. Morton passed away in 1954, without having made any change in his will. His widow, the income beneficiary, survived until 1961. At the time of her death, Eleanor's three children and Adeline's four were all living, as they are today.
The single question in the case is whether the trust remainder is to be divided into seven equal shares, one for each of the testator's grandchildren, or into two equal parts, representing the deceased daughters, with their respective children sharing each per stirpes.*fn1 The trial court decided in favor of the seven part division, the position asserted by Adeline's line. This appeal on behalf of Eleanor's branch (in which the trustees take no part) was certified on our own motion while pending unheard in the Appellate Division. R.R. 1:10-1(a).
The provision of the will particularly involved specifies:
"* * * upon [my wife's] death I direct my Trustees to divide my residuary estate into equal shares for my issue who shall survive my said wife, such division to be made in equal shares per stirpes, however, and not per capita * * *" (emphasis added throughout).
The disposition of each share "so set apart for a descendant of mine" was made dependent on whether the beneficiary thereof was or was not "in being at the date of [the testator's] death." If the person entitled was not in being then,
his share was to be paid over absolutely upon the life tenant's death. If "such descendant " was in being when Mr. Morton died -- the case here as to all of the seven grandchildren --, the share was to be continued in trust, with income to "such descendant " for life and, upon the descendant's death, the principal was to be given absolutely "to such descendant's issue who shall survive such descendant * * * in equal shares per stirpes, however, and not per capita * * *" Additional contingent provisions with respect to the principal of each share specified that "if there shall be no issue of such descendant who shall survive him or her then to the issue of the child of mine who was such descendant's ancestor who shall survive such descendant * * * in equal shares per stirpes, however, and not per capita * * * and if there shall be no issue of the child of mine who was such descendant's ancestor who shall survive such descendant, then to my issue who shall survive such descendant * * * in equal shares per stirpes, however, and not per capita."
Two other provisions may be noted. In the event Mrs. Morton were to predecease the testator, he specified that the residuary estate was to be divided "into equal shares for my issue who shall survive me, * * * in equal shares per stirpes, however, and not per capita," to be held in trust in the same manner as previously provided upon his wife's death if she survived him. And at the end of the section of the will disposing of the residuary estate, he said: "Anything hereinabove contained to the contrary notwithstanding, I give and bequeath to my daughter [Adeline] the sum of * * * $5,000 out of the principal of the share of my residuary estate so set apart for her * * *"
At Mrs. Morton's death, the testator's then "issue" and "descendants" were the seven grandchildren, all of whom were in being at the time of his death. This circumstance brought into operation the provision retaining the shares in trust with, as we mentioned, ultimate ...