For modification -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor and Hall. Opposed -- None. The opinion of the court was delivered by Hall, J.
The question on this appeal is whether the remainder interest in one of three residuary trusts created by the will of Elizabeth West Burke pours over into the other two trusts or is to be disposed of as intestate property of the testatrix. It arises on the death of the life beneficiary by reason of the prior demise of all designated remaindermen in that trust. The will makes no provision whatever for devolution in this contingency. There is therefore a case of complete gap, compare In re Estate of Morton, 48 N.J. 42 (1966), bringing into play the matter of "probable intent." See Fidelity Union Trust Co. v. Robert, 36 N.J. 561 (1962).
The Chancery Division, in the trustee's action for instructions, found that the probable intent of the testatrix in the circumstances could not be ascertained and consequently directed that the trust remainder be distributed by intestacy among the next of kin of the testatrix determined as of the date of her death. The principal appeal is by the beneficiaries of the other two trusts. We certified it on application prior to argument in the Appellate Division. R.R. 1:10-1A.
The circumstantial setting of the problem is evidentially confined to the will itself and family history. The will was executed in 1916. Mrs. Burke, apparently then a widow, had had three children, a son, Edward F. Burke, and two daughters. Mabel Burke Walker and Edith L. Wilkinson. Mabel had died in 1912, leaving her husband, John Y.G. Walker, and three children, Kenneth S. Walker, Mabel Burke Walker (now Lewis) and Elizabeth Lee Walker (now Stoddard). Edward had passed away in 1915, shortly before his mother's will was executed, leaving his wife, Madeleine Forrest Burke (she was later remarried to a man named Apponyi) and three children, Randolph Forrest Burke, Edward W. Burke and Madeleine (who later married Charles G. King, III). All of these grandchildren must have been quite young. We know only that Randolph was then 15 years old. Edith was living in 1916, and still is. She presently has three living adult children, Lawrence Wilkinson, J. Burke Wilkinson and
Patricia Wilkinson Howard. Whether any had been born by 1916 we are not advised.
At the time of the execution of the will, the testatrix was a resident of Essex County, New Jersey, and continued to be so until her death in 1924. The will was prepared, however, by a Baltimore attorney, who seemingly had been her son's lawyer, the son being a resident of Maryland when he died. There were no deaths in the family between the 1916 will and Mrs. Burke's passing in 1924. Thereafter, in the Mabel Burke Walker branch, Mabel's husband, John Y.G. Walker, died in 1940, leaving the three previously mentioned children of that marriage, who still survive. In the Edward F. Burke branch, the daughter Madeleine King died in 1929, a resident of Rhode Island, intestate and without issue, but leaving her husband (who subsequently died in 1952). The son Edward W. died intestate in 1936, a resident of Texas. He had never married. The son Randolph died a resident of Florida in 1961, at the age of 60, testate, but without leaving issue or a surviving spouse. Edward F. Burke's widow, Madeleine Forrest Burke Apponyi, survived until 1963 when, at the age of 87, she died testate. Thus, all her children by her marriage to Edward F. Burke had predeceased her and none of them left issue. This fact gives rise to the question before us.
Mrs. Burke's main testamentary scheme was a division of the residue of her estate, "real, personal and mixed, of whatsoever kind and description and wheresoever located, whether in possession or remainder," into three equal parts, each to be held in separate trust for the benefit of one of the three branches of her family. Preliminarily, she made some small bequests and set up two other trusts. The first of these trusts comprised her real property and was to extend for a maximum period of five years to permit orderly sale within that time and management in the interim. The proceeds were directed to be divided into three equal parts, to pour over into each of the residuary trusts. The second consisted of $25,000 in bonds, the income from which was to be paid to
her sister during the latter's life, with the corpus thereafter also to be divided into three equal parts and similarly paid into the residuary trusts.
The residuary trusts we will designate as the "Apponyi trust" (Item V of the will, with which we are particularly concerned), the "Walker trust" (Item VI of the will), and the "Wilkinson trust" (Item VII of the will). The basic pattern of each was payment of the income to her surviving child (Wilkinson trust) or her deceased children's surviving spouses (Apponyi and Walker trusts) for life, with each remainder to be divided, on the death of the life beneficiary, equally among her then surviving grandchildren in that branch, per stirpes. The specific language of the Apponyi trust read: "upon the death of the said Madeleine Forrest Burke, I direct that my said trustees shall divide this trust fund into as many equal parts as there are children of the said Madeleine Forrest Burke and my son, Edward F. Burke, at that time surviving, the children of any deceased child to take by right of representation the share of the parent * * *." The Walker trust language was to the same effect. The identity of the grandchildren who could possibly take in each of these two trusts was fixed when the will was executed for the Burke family parent had already died in each instance. This was not true of the Wilkinson trust since Mrs. Wilkinson was then living and could have further children.
The time and method of payment of the share of each surviving grandchild or his representative were thoroughly spelled out in each trust. The basic pattern was essentially the same, with some individual variations. In the Apponyi and Walker trusts, distribution of the share of principal was to be made when each grandchild attained age 25. Each Apponyi grandchild was also to receive a $30,000 advance on his share when he reached that age, though his mother be still living. In the Wilkinson trust, the age was 21. In all three cases, each share was to continue in trust until the distribution age was reached, with the income paid to or for the benefit of the ultimate beneficiary in the interim.
The contingency distribution provisions were detailed and complex. As has been said, in the event any grandchild predeceased his life tenant leaving a child or children, such issue took his remainder interest by representation. The share of principal to which he thereby became entitled was to be paid to him when his parent would, in the case of the Apponyi and Walker trusts, have become 25 years old had he lived. It was further provided that if a grandchild should survive the life tenant, but die before reaching 21 years of age without leaving a child or children, his share would devolve by survivorship upon the remaining grandchildren interested in that trust. In addition, the testatrix gave the Apponyi and Walker grandchildren surviving the life tenant the power between age 21 and age 25 to dispose of their prospective shares by will and, in default of such appointment, the share was ultimately to pass in the event of the beneficiary's death during that period as his intestate property pursuant to, in the case of the Apponyi grandchildren, the laws of Maryland and, with respect to the Walker grandchildren, the laws of New Jersey.
When the entire will is surveyed, it is apparent, however, that several contingencies common to all the trusts are not covered. For present purposes, the following may be noted. There is no express provision as to what should occur in the event a life beneficiary predeceased the testatrix. There is a complete gap -- the situation confronting us -- in the event the life tenant survives the testatrix, but dies leaving no issue. Another unprovided for situation is the death of the life tenant subsequent to that of the testatrix, with children then living, and the subsequent death of all such children before reaching age 21 without issue. In appraising the unmet contingencies, it can fairly be concluded that the testatrix provided in great specificity for occurrences in the ...