On appeal from Essex County Court, Probate Division, whose opinion is reported in 98 N.J. Super. 36 (1967).
Conford, Kilkenny and Leonard. The opinion of the court was delivered by Kilkenny, J.A.D.
This will construction case is before us for the second time. The paragraph in issue in the will provided a bequest in favor of testator's widow of "an amount equal to fifty percent of my entire estate."
On the prior occasion we were asked to decide whether calculation of the 50% was to be based upon the value of the estate as of June 13, 1960 when decedent died, or its increased value in 1966 when distribution was to be made. We decided that the amount was to be calculated according to the value "at the time of death and without regard to the appreciation in value between the date of death and the date of distribution." In re Thompson, 90 N.J. Super. 350, 355 (App. Div. 1966). No appeal was taken from that determination.
In this second action brought on behalf of the widow, the County Court was asked to determine, with reference to the quoted clause first mentioned above, whether "entire estate" meant decedent's gross estate, before payment of debts, funeral expenses and administration costs, or his net estate, after payment of those items. (The parties conceded that by virtue of another provision of the will taxes are not to be deducted before computing the widow's share.) Judge Yancey concluded that in calculating the amount of money due plaintiff widow under the particular paragraph, the "entire estate" for this purpose means "the net probate estate, valued at the time of death after payment of testator's debts, funeral expenses and administration expenses."
Plaintiff appeals, among other things, from the judgment so holding. We affirm the judgment essentially for the reasons expressed by Judge Yancey in his opinion. In further support of the interpretation of "estate" as meaning the "net," rather than the "gross," estate, see 5 N.J. Practice
(Clapp, Wills and Administration) (3 d ed. 1962), § 226, pp. 383-84; In re Wolosin's Will, 41 Misc. 2 d 582, 245 N.Y.S. 2 d 923 (Surr. Ct. 1964); In re Seliger's Estate, 27 Wis. 2 d 323, 134 N.W. 2 d 447, 452 (Wis. Sup. Ct. 1965). In the last-mentioned case the court found that a provision in decedent's will giving to his widow one-third of his "entire estate" meant that the share was to be computed on the "net estate" after deduction of all liabilities and expenses.
Plaintiff next claims that she was entitled to interest on the legacy bequeathed to her, at least at 3% either from June 13, 1965, five years after her husband's death, or from the date of her demand, May 17, 1966, following the rendition of our prior opinion.
As defendant properly points out in its brief, there are two simple answers to this contention. First, plaintiff had received a total of $194,993.26 on or before August 25, 1964, well before the date on which the last of the five annual payments was due. As of November 17, 1967, the net probate estate, computed in the manner stated above by the trial court, amounted to $388,833.73. Plaintiff's legacy of "an amount equal to fifty percent" of that net probate estate was the sum of $194,416.86. Obviously, therefore, plaintiff has in fact received $576.40 more than she was entitled to receive under paragraph "Fifteenth." Since there was no balance of the legacy withheld from her upon the date it was due, she was not entitled to interest.
The second answer lies in the fact that plaintiff was entitled under the terms of the will to the entire net income of that portion of the estate which was set up in trust, and she received that entire net income. If she had received, or was entitled to receive interest, it would have represented a deduction from the net income, unless the trustee were surcharged therefore, and no just ground for doing so is made to appear. In effect, therefore, she has received in the form of income what she now claims she was entitled to receive in the form of interest. Clearly, she has not been aggrieved
nor has she suffered any loss. Accordingly, the trial court properly denied ...