This action was instituted by the executors under the will of Thomas E. Catchpole, deceased, to obtain a construction of his will executed November 25, 1953. Defendant James White, a grandnephew of decedent, is the devisee of a house and lot under paragraph Third. Defendants Roger White and Margaret Tanner are given an interest in the proceeds of a sale of the real property devised under paragraph Third. In addition, Roger White benefits under the residuary clause. These three persons are brothers and sister. The matter is before the court on final hearing.
Paragraph Third of the will provides as follows:
"I give, devise and bequeath to James White, son of my nephew, Eustace White, my house together with my furniture, except such antiques, linen and glassware as shall be selected and taken by Margaret Tanner, as provided hereinafter, located at 164 South Street, in the Borough of Eatontown, County of Monmouth and State of New Jersey. In the event my said grandnephew, James White shall sell said house within fifteen years after the date of my death, I direct that he shall give my grandniece, Margaret Tanner, and grandnephew, Rodger [ sic ] White, notice in writing of his intention so to do, and I further direct that he shall divide the proceeds from said sale equally between himself, said Margaret Tanner and said Rodger [ sic ] White, their heirs and assigns, per capita and not per stirpes.
(a) In the event said Rodger [ sic ] White has not attained the age of twenty-five (25) years at the time of the sale, said share so bequeathed to him shall be paid to my trustees for distribution to him in accordance with the provisions of the trust hereinafter provided for him."
The house referred to in that paragraph had been occupied by decedent as his residence for a number of years. The White family (parents of James, Roger and Margaret) lived one house away from the property. Mrs. Catchpole died in April 1953. There had been a close personal relationship between decedent and James White and his wife. James White acted as a son towards decedent. He and his wife did the shopping for him; they arranged for doctors; they were available whenever decedent needed help.
On January 12, 1968 a fire partially destroyed the premises. In that fire decedent received injuries from which he died on
January 26, 1968. During the interval between the date of the fire and the date of death, decedent did not have the capacity to change his will. At the time of the fire there was a policy of fire insurance covering the premises. A claim was made under the policy which was adjusted after Catchpole's death for $7,738.81, out of which $92.46 was spent for the protection of the premises. James White claims the insurance proceeds under paragraph Third. Roger White claims that the proceeds of the insurance policy constitute personalty, an entirely different asset than the house, and therefore should pass under the residuary clause.
Since the fire James White has repaired the house, incurring obligations in the neighborhood of $10,000 as well as contributing a substantial amount of his own labor.
Roger White relies primarily upon New York cases and particularly upon In re Wright's Will, 7 N.Y. 2 d 365, 197 N.Y.S. 2 d 711, 165 N.E. 2 d 561 (Ct. App. 1960). That case held that where personal property had been lost prior to testator's death, there was an ademption so that the legatee was not entitled to the insurance proceeds paid to the estate on account of the loss. The basis of the decision was given by the court as follows:
"As indicated above, we deal with the problem of ademption. Although, in the early days of our law, ademption was based on the intention of the testator, today in New York, as well as in many other jurisdictions, intention has nothing to do with the matter; the bequest fails and the legatee takes nothing if the article specifically bequeathed has been given away, lost or destroyed during the testator's lifetime." (197 N.Y.S. 2 d, at p. 711, 165 N.E. 2 d, at p. 562)
There is some support for the proposition that such was the law in this State at one time. Wyckoff v. Perrine's Ex'rs, 37 N.J. Eq. 118, 122 (Ch. 1883). Since that time, however, it has become clear that probable intent of the testator is the determining factor.
In In re Cooper's Estate, 95 N.J. Eq. 210 (E. & A. 1923), Chief Justice Gummere quotes with approval a rule laid down by the ...