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Matter of Estate of Albert D. Smith

Decided: February 4, 1969.

IN THE MATTER OF THE ESTATE OF ALBERT D. SMITH, DECEASED. FIDELITY UNION TRUST COMPANY, TRUSTEE, ETC., PLAINTIFF-RESPONDENT,
v.
THE HOUSE OF THE GOOD SHEPHERD, DEFENDANT-APPELLANT, AND JEFFREY A. RANDOLPH, ALICE P. RANDOLPH AND ROBIN ROS HIGHLEY, MINORS, THROUGH THEIR GUARDIAN AD LITEM ALFRED C. CLAPP, AND LOUISE H. RANDOLPH, DEFENDANTS-RESPONDENTS AND CROSS-APPELLANTS, AND PETER ROS AND TIMOTHY H. ROS AND CRISTINA ROS, MINORS, THROUGH THEIR GUARDIAN AD LITEM STEPHEN B. WILEY, DEFENDANTS-RESPONDENTS AND CROSS-APPELLANTS



Gaulkin, Collester and Labrecque. The opinion of the court was delivered by Labrecque, J.A.D.

Labrecque

Appellant The House of the Good Shepherd appeals from a judgment of the Essex County Court directing that the income from two trust funds administered by plaintiff Fidelity Union Trust Co. be paid over to the children of Alice H. S. Randolph, deceased, a great granddaughter of the testator.

Decedent died on October 17, 1913, survived by his wife Nellie Gasper Smith, his daughter Mary Alice Smith Hallock (Freefield), and his granddaughters Louise St. John Hallock (Ros) and Mary Alice Hallock (Shackelton). His will, which was duly admitted to probate by the Surrogate of Essex County, provided, in pertinent part, as follows:

"FOURTEENTH: All the rest, residue and remainder of my estate, * * * I direct my executors to divide into two equal parts and of them I dispose as follows:

a. I give and bequeath one of such parts to Fidelity Trust Company of Newark, New Jersey, to have and to hold the same upon the following trusts, that is to say:

(2) To pay over the net income thereof to my wife, Nellie Gasper Smith, during her life, and upon her decease, if my daughter, Mary Alice Smith Hallock, survive me to pay the said net income to her during her life and upon the decease of both my said wife and daughter, to pay the said net income in equal shares to my grandchildren, during the lives of my said granddaughters, Alice May Hallock and Louise St. John Hallock, and the survivor of them, the issue of each deceased grandchild to stand in the parent's place, and upon the decease of the survivor of my said two granddaughters to divide the principle [ sic ] with all accumulations of income in equal shares and pay over the same to all of my grandchildren, the issue of every deceased grandchild (including my said two granddaughters) to stand in the parent's place.

(3) If, however, at the decease of my said wife, my daughter and both my said two granddaughters, no lineal descendant of mine shall then survive, I direct the principal thereof with all accumulations of income to be distributed equally among the Orange Memorial Hospital, the House of the Good Shepherd, located in the City of Orange, New Jersey, the Orange Orphan Society, located in the City of East Orange and the Young Men's Christian Association of the Oranges.

b. I give and bequeath the other one-half of said residue to said Fidelity Trust Company to have and to hold the same upon the following trusts, viz: --

(2) To pay the net income arising therefrom to my daughter, Mary Alice Smith Hallock, during the term of her natural life and upon her decease to pay the net income in equal shares to my grandchildren during the lives of both my said granddaughters, Alice May Hallock and Louise St. John Hallock, and the survivor of them, the issue of each deceased grandchild to stand in the parent's place, and upon the decease of the survivor of my said two granddaughters to divide and pay over the principal with all accumulations of income in equal shares to all of my grandchildren, the issue of every deceased grandchild (including my said two granddaughters) to stand in the parent's place.

(3) If, however, upon the decease of my said daughter and both my said two granddaughters, no lineal descendant of mind [ sic ] shall then survive, I direct the principal thereof with all accumulations of income to be distributed equally among the

Orange Memorial Hospital, the House of the Good Shepherd located in the City of Orange, New Jersey, the Orange Orphan Society, located in the City of East Orange, and the Young Men's Christian Association of the Oranges."

For purposes of convenience the trusts provided in paragraphs (a) and (b) will be hereafter referred to as Trusts A and B, respectively.

Mary Alice Smith Hallock Freefield, testator's daughter, died on December 31, 1945. One of her two children, Louise St. John Hallock Ros is living. Her only other child, Alice May Hallock Shackelton, died in 1915 leaving a daughter, Alice H. S. Randolph, whose death on January 23, 1967 precipitated the present controversy. Alice left surviving her three children, Louise H. ...


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