[98 NJSuper Page 37] This is an action by plaintiff Helen Lapp Thompson, widow of the deceased Frank G. Thompson, for distribution under a will brought on an order to show cause signed October 7, 1966. Plaintiff here seeks construction of two paragraphs of the said will. Defendant is the National Newark and Essex Banking Company of Newark, which was nominated and qualified as executor and trustee
under said will. Thompson's will was admitted to probate by the Essex County Surrogate on June 24, 1960. Subsequently, plaintiff obtained an order to show cause why the executor should not account. Thereafter, the executor sought an allowance of its first account and construction of the paragraph Fifth of the will regarding the date of valuation of the estate for purposes of distribution to plaintiff. That paragraph provides 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."
The Essex County Court determined that Mrs. Thompson was entitled to a sum equal to 50% of the value of the estate as of the date of distribution. The executor appealed this determination and the Appellate Division of the Superior Court decided that the proper construction of this paragraph fixed the percentage payable to the widow at 50% of the entire estate, valued at the time of death without considering either appreciation or diminution of the estate between the date of death and the date of distribution. A judgment to this effect was entered on or about May 6, 1966 in the Essex County Court, Probate Division.
On June 10, 1964 the executor determined that the share distributable to Mrs. Thompson under the paragraph Fifth of the will to be $208,605.20.
Plaintiff, by this proceeding, challenges the correctness of that determination as improper and thereby seeks construction of said paragraph Fifth. She claims that under the proper interpretation of this provision she is entitled to $301,555.15, and since the executor has distributed $194,993.26 to her, she is entitled to a balance of $106,561.89 at 6% interest from the date of entry of judgment pursuant to the Appellate Division's opinion. Demand for this balance
was made by plaintiff on the executor by letter dated May 17, 1966.
Plaintiff also contends that paragraph Fifteenth of the will provides for payment by the trustee out of the corpus of a trust established by testator of sums expended by her for her mother's last illness. That paragraph, after giving the residuary estate to the trustee, provides in pertinent part for the following use:
"(a) To take possession of, hold, manage, invest and re-invest the same and 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; and to continue after my wife's death to pay the net income therefrom to my mother-in-law, LOUISA LAPP, during my mother-in-law's life-time, should she survive my wife. In addition to the payment of the net income from this trust, my trustee may at any time and from time to time pay over to my wife, HELEN LAPP THOMPSON, or my mother-in-law, LOUISA LAPP, as the case may be, so much of the corpus of said trust as my trustee, in its sole discretion, may deem advisable to maintain the standard of living to which they were accustomed during my lifetime or to satisfy emergency expenses that may be incurred by them by reason of illness or otherwise."
Following this provision, the trustee is directed to pay sums to two charities and the balance to a foundation formed by the trustee and known as the "Frank G. Thompson Foundation."
From the exhibits in this case it appears that Mrs. Thompson expended $11,403.35 for her mother, Louisa Lapp, because of a circulatory condition which required medical attention from September 1962 until April 1963. On May 17, 1966 plaintiff submitted the bills for these expenses to the trustee, but the trustee has refused to honor same.
Plaintiff contends that the language contained in paragraph Fifth of the will delineates a general primary legacy amounting to a fixed dollar amount, and that costs of funeral expenses, counsel fees and administration expenses should not be deducted in computing this sum. As to the language contained in paragraph Fifteenth, ...