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In re Trust Under Article Eleventh of Last Will and Testament of Bernard R. Armour

Decided: August 4, 1976.

IN THE MATTER OF THE TRUST UNDER ARTICLE ELEVENTH OF THE LAST WILL AND TESTAMENT OF BERNARD R. ARMOUR, DECEASED, FOR THE BENEFIT OF THE ISSUE OF RACHEL ARMOUR DOYLE, FORMERLY RACHEL ARMOUR


Gelman, J.s.c.

Gelman

[145 NJSuper Page 48] Bernard R. Armour executed his last will and testament in 1944. By its provisions, which became effective upon his death in 1949, a trust consisting of one-third of his residuary estate was established for the benefit of his daughter Rachel Armour. The trustees were directed to accumulate the trust income and apply so much of the net income as, in their discretion, was needed for Rachel's education, support, and maintenance until Rachel attained the age of 21. At that time the trustees were to pay over

to Rachel the accumulated, undistributed income and thereafter, for her life, all future income. The will further provided that at Rachel's death the trust was to terminate and the principal was to be paid to Rachel's lawful issue then surviving, in equal shares per stirpes.

Rachel died in 1968, survived by her two minor children, Joshua Klein and Leah Doyle. Article Eleventh of the will provided that should any sum, whether income or principal, become payable,

Leah Doyle is presently 15; Joshua Klein became 18 on July 4, 1976. Since he is no longer a minor under N.J.S.A. 9:17B-3,*fn1 Joshua construes the will as entitling him to immediate payment of all of the accumulated trust income. It is his contention that the testator used the term "minor" to refer to the legal status of the beneficiaries rather than as a synonym for the then prevailing age of majority, 21. The trustees are in doubt as to the construction claimed by Joshua and have requested this court to

construe the will and to advise them as to their rights and duties.

Of course, the intention of the testator is the controlling consideration, and to discern that intent we must look to the language of the instrument itself, as well as the relevant circumstances and law in existence when the will was executed. Watson v. Brower , 24 N.J. 210, 215 (1957); In re Wehrhane , 23 N.J. 205, 210 (1957); In re Armour , 11 N.J. 257, 269-270 (1953). Paragraph Eleventh is a typical form of trust frequently utilized in wills and inter vivos trusts to avoid the distribution of trust funds to remaindermen who have not attained their majority. The only unusual feature of this trust -- which gives rise to the claimed ambiguity -- is that the testator used different expressions to define the date of termination. The prefatory language directs the trustees to accumulate and apply trust income for the benefit of any person "who at the time shall be a minor," and the second sentence directs that the distribution of income shall occur as each beneficiary attains the age of 21. At the time the will was executed 21 was the age at which minority terminated, and there is nothing in the language of the instrument to indicate an intent on the part of the testator to make the time of distribution of trust assets to his grandchildren dependent upon future legislation. From the context in which it appears, it is evident that the testator used the term "minor" not to denote a mutable legal status, but to signify the specific time at which he wished distribution to occur, i.e. , age 21.*fn2

There is support in the case law of New Jersey for this conclusion. In Quick's v. Ex'r v. Quick , 21 N.J. Eq. 13 (Ch. 1870), the property was to pass to the life tenant's heirs "to be divided among them as the law directs in case of

dying intestate." In 1808, when the will was executed, the act of 1780 regulated descent and distribution in New Jersey. This statute abolished the English law of primogeniture and the exclusion of female descendants, and gave to each female, in the same degree from the ancestor, one share to two shares for each male descendant. This remained the law until 1816 when the statute was changed to allow males and females to inherit equally. The court in Quick held that the controlling law was the statute applicable at the time of the making of the will, and not the statute in effect at the death of the life tenant. Reasoning that there was a strong inclination among freeholders of the State towards some preference for male over female heirs, and that the law, as it existed in 1808, was well known to the testator, the court concluded that he had intended to adopt the division of two shares to a male and one to a female as the mode of dividing his property among his grandchildren.

In reaching this result the court distinguished the case of Kennedy v. Kennedy , 29 N.J.L. 185 (Sup. Ct. 1861), in which the devise was to the testator's son for life and after his death to his heirs "as the law may direct" (emphasis supplied), since this language indicated an intent that the heirs should take according to the laws of inheritance in effect at the termination of the life estate.

The reported decisions under N.J.S.A. 9:17B-3 suggest nothing which would lead us to reject the testator's intent. These cases involve the determination of legislative intent in statutorily reducing the age of majority. For example, in N.J. State P.B.A. v. Morristown , 65 N.J. 160 (1974), the Supreme Court held that the Legislature intended N.J.S.A. 9:17B-3 to supersede the statute prohibiting employment of persons under 21 years of age as policemen. And in In re Morgan , 122 N.J. Super. 117 (1973) the County Court held that there was no valid reason why the ...


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