For reversal -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For affirmance -- None. The opinion of the court was delivered by Proctor, J.
[54 NJ Page 352] This is a will construction case, initiated by a trustee who requests instructions concerning the proper distribution of the principal of a trust created under the will of John Englis for the benefit of his daughter, Bertha Englis Sayre, during her lifetime. The trustee's uncertainty arises from the language of the will pertaining to the devolution of the principal following Mrs. Sayre's death. Mrs. Sayre died in 1966 at the age of 95 years, widowed and without children or other issue; she had been the last surviving child of the testator.
John Englis executed his will in 1911, and republished it by codicil in 1914. He died in 1915, survived by his wife and five of his six children -- Charles, Bertha, Anna, Jeanette, and Mary. His son William predeceased him by 25 years, leaving two children, William and Madelyn, who received specific bequests in the will. Paragraphs 11 and 12 of the will dispose of the residue of the estate as follows:
"ELEVENTH: All the rest, residue and remainder of my estate, both real and personal, including lapsed legacies, I divide into five equal separate parts, and I give, devise and bequeath each of said separate parts unto my Executors hereinafter named, or such of them as shall qualify, and the survivors and survivor of them, in trust nevertheless for the following uses and purposes, that is to say: I direct my said Executors, the survivors and survivor of them, to rent or invest and keep rented or invested each one of said separate one-fifth parts of said rest, residue and remainder, and during the respective lives of each one of my said five children to pay over unto each of said children, the rent, income and profits of their respective one-fifth parts of such rest, residue and remainder, and at the death of each one of my said children, I give, devise and bequeath absolutely unto, and I direct my said Executors, the survivors and survivor of them, to transfer and set over absolutely unto, the children of such deceased child, share and share alike, all of the said separate one-fifth parts of my said estate from which my child so dying is entitled to receive the rent, income and profits during life.
"TWELFTH: In the event that any of my said five children shall die without leaving any children surviving, the said one-fifth part of my said residuary estate of which the income, rents or profits said child so dying would be entitled to during life, I give, devise and bequeath absolutely unto such of my five children as may then remain living, and the then living children of any of my said five children who may have died, such grand-child or grand-children to take the same share which their parent would have taken if living." (emphasis added)
The problem in this case arises from the fact that certain grandchildren of the testator (children of Bertha's sisters, Anna and Mary) predeceased Bertha leaving children who were the testator's great-grandchildren. As is set forth in the Twelfth paragraph quoted above, following the death of one of the testator's five children (Bertha in this case) without leaving any children surviving, the principal of the trust (one-fifth of the residue) is to be divided among "such of
my five children as may then remain living, and the then living children of any of my said five children who may have died, such grand-child or grand-children to take the same share which their parent would have taken if living." As mentioned above, Bertha had been the last surviving of the testator's children. When Bertha died there remained no living descendants of her brother Charles, thus eliminating that branch from consideration. There remain the three branches which descend from Bertha's sisters, Jeanette, Anna and Mary. Jeanette's only children, a son and a daughter, were alive at the time of Bertha's death, and therefore it is clear from the language of the Twelfth paragraph that they are entitled to share per stirpes one-third of the principal of the Bertha Sayre trust.
The controversy over the division of the remaining two-thirds of the Sayre trust concerns the two lines of the Englis family which issue from Mary and Anna. Mary had two children, Russell and John Melcher. Russell Melcher predeceased his Aunt Bertha, leaving two children, Janice Lewis and Russell W. Melcher, great-grandchildren of the testator. John Melcher survives his Aunt Bertha. Anna had three children. One of them, Warren Glover, predeceased his Aunt Bertha, leaving four children, Warren Nuessle, Gerry Rogers, Randall Makepeace Glover, and Russell Englis Glover, also great-grandchildren of the testator. Anna's other children, Frances Charrington and Thomas Glover, survive their Aunt Bertha.
If the language in the Twelfth paragraph of the will -- "the then living children of any of my said five children who may have died, such grand-child or grand-children" -- is read literally, then the testator's great -grandchildren mentioned above would be precluded from taking pursuant to the will. John Melcher would be entitled to the entire one-third interest which would have gone to his mother, Mary, had she not predeceased Bertha. Frances Charrington and Thomas Glover would be entitled to share the one-third interest which would have gone to their mother, Anna, had she not
predeceased Bertha. On the other hand, if the terms "children" and "grand-children" are read broadly to include grandchildren and great-grandchildren, respectively, then John Melcher would share the one-third interest in the distribution with the two children of his brother Russell, who predeceased Bertha. Frances Charrington and Thomas Glover would share the one-third interest in the distribution with the four children of their brother Warren, who predeceased Bertha.
The trial court interpreted the will so as to include the great-grandchildren, who would take per stirpes the share parent would have taken had he survived Bertha. Thus the following ...