Gaulkin, Lewis and Labrecque. The opinion of the court was delivered by Lewis, J.A.D.
The Plainfield Trust State National Bank and Edward LeRoy Voorhees, as trustees of an inter vivos trust created by Eleanor S. Voorhees (herein settlor), sought the advice of the Union County Court, Probate Division, as to the distribution of the corpus of the trust upon the death of the last life beneficiary. The court ruled that a partial lapse had occurred and, by a resulting trust, one-half of the corpus should revert to the settlor's estate to be distributed in accordance with the provisions of the residuary clause of her will. That determination is here on appeal.
The essential facts were undisputed, and the matter was submitted to the trial court on a stipulated record and the arguments of counsel. In sum, the trust created by settlor on April 16, 1940 provides: (1) income to be paid to settlor for life; (2) upon her death income to be paid to her brother, Dr. Irving Wilson Voorhees, for his life, with a right to invade principal for his benefit in stated circumstances, (3) upon the death of Dr. Voorhees to pay one-half of the principal of the trust to the children of settlor's deceased brother, Stephen H. Voorhees, in equal shares per stirpes, and
"To continue to hold the remaining one-half share of said trust fund and to pay the net income therefrom in quarterly payments as nearly as may be to Irving Wilson Voorhees, Jr., son of Dr. Irving Wilson Voorhees, until he arrives at the age of forty (40) years, and upon his arriving at said age, to transfer, turn over and pay to him the principal of said share of said trust fund, the same to be his absolutely.
[Next follows a provision for a limited right to invade principal.]
In the event of the death of said Irving Wilson Voorhees, Jr., before reaching the age of forty (40) years, then to transfer, turn over and pay the corpus of the trust fund held for his benefit, to his issue, share and share alike if more than one, to be his, hers or theirs absolutely."
Concurrent with the signing of the aforesaid trust instrument the settlor executed a will by which she devised and bequeathed her entire residuary estate to her brother, Dr. Voorhees. Nine days thereafter settlor died. She was survived by Dr. Voorhees, his son Irving (hereafter Irving, Jr.), and the two daughters, Mrs. Ruth S. Voorhees and Mrs. Helen V. Meding, of her deceased brother Stephen.
Prior to attaining 40 years of age, Irving, Jr. was killed in action during World War II; he was unmarried, left no issue, and had not made a will. Dr. Voorhees died February 4, 1965; he left a will wherein he established testamentary trusts providing for life beneficiaries, including his nieces Ruth S. Voorhees and Helen V. Meding, with a provision for the principal of his trust estates to be ultimately paid in equal shares to the Manhattan Eye, Ear and Throat Hospital and Princeton University.
The death of Dr. Voorhees terminated his sister's inter vivos trust and precipitated the pending action of the trustees for judicial instructions. It is conceded that the nieces, Ruth and Helen, each are entitled to a one-quarter interest in the trust corpus; the instant controversy centers upon the remaining portion of the trust assets designated by the donor to be given to Irving, Jr. or his issue.
The trial court held that the share of the trust corpus intended for Irving, Jr. reverted, by virtue of a resulting trust occasioned by a failure of the gift-over, to settlor's estate. Accordingly, judgment was entered determining that the one-half part of the remainder of the trust passed to Dr. Voorhees pursuant to the residuary clause of settlor's will and was now distributable to the executors of his estate.
The appeal from that judgment is prosecuted by Helen V. Meding. She urges this court to construe the trust agreement in a manner which she claims would avoid a partial lapse and carry out settlor's alleged probable intent, to wit, that her nieces should receive the entire corpus. She also asserts that the trust agreement should be construed as a ...