Matthews, Seidman and Horn. The opinion of the court was delivered by Seidman, J.A.D.
In its complaint to settle the final account of the trust established under the last will and testament of Minnie E. Nicol, deceased, The United States Trust Company also sought a construction of that portion of the will which directed the trustee, upon the termination of the trust, to divide the principal thereof into as many equal parts "as there are issue (or lineal descendants) of myself then living," and to pay over an equal share to each.
The question presented below, as well as on this appeal, is whether the gift to "issue (or lineal descendants) of myself" included adults adopted by testatrix' son after her death. The trial judge held that it did, and entered judgment which so construed the words, in addition to allowing the final account and awarding commissions and fees.
This appeal was filed by the guardian ad litem of certain infant blood descendants of testatrix. Respondent guardian ad litem represents the interests of two infants whose mother was one of the persons adopted by testatrix' son. As they did below, the parties have stipulated the pertinent facts.
Minnie E. Nicol died on May 14, 1939, a resident of New Jersey, leaving a last will and testament dated October 26, 1935. Her will was admitted to probate on July 21, 1939. The third article of the will provided as follows:
THIRD: All the rest, residue and remainder of my property, real and personal, of whatever kind and wherever situate, including all my Stocks, Bonds, Mortgages, Notes, Accounts or other Securities, of which I may die seized or possessed, or to which at the time of my death I may be in any manner entitled, I give, devise and bequeath unto United States Trust Company of New York, its successors and assigns, to have and to hold the same IN TRUST for the following uses and purposes and subject to the terms, conditions, powers and agreements hereinafter set forth:
To receive, hold, manage, sell, invest and re-invest the same and every part thereof in the manner hereinafter specified, and to collect and receive the rents, issues, interest, profits and income thereof, hereinafter called "Income", and after paying therefrom the necessary and proper charges and expenses in connection with the conservation and administration of the Trust, to divide the principal and net income as follows:
To my grandchildren, and to my son, Alexander Kenneth Nicol, and/or to the survivors who may be living during the continuance of the Trust hereby created, I direct my Trustee to pay quarterly, in equal shares or amounts, sixty per cent (60%) of the net income of my Estate, and the remaining forty per cent (40%), to my sisters during their joint lives, and unto the survivor or survivors, in equal shares or amounts, and from and after the death of my last surviving sister, unto the Women's Missionary Society of Central Presbyterian Church of Summit, New Jersey, or successors.
The Trustee shall retain the principal sum of the Trust Estate hereby created, until twenty (20) years after the death of the last survivor of my said sisters and myself, and shall then divide the same, after payment of all proper charges into as many parts or shares as there are issue (or lineal descendants) of myself then living , and convey, assign, transfer, set over and deliver unto each of said surviving issue, one equal share of the principal sum of said Trust Estate. [Emphasis supplied]
Testatrix was married to Alexander R. Nicol. They had four children, three of whom later had natural children and grandchildren of their own. The fourth, Alexander Kenneth Nicol (hereafter Alexander), born in 1911, was a resident of California when he married Frances May Williams in July 1939. She was a divorcee with four children ranging in age from 15 to 19 years. Alexander thereafter treated the children as his own and contributed to their support and maintenance.
In July 1952, when the stepchildren were from 28 to 32 years of age, Alexander instituted proceedings in California for their adoption. This followed the passage in 1951 of an amendment to the California adoption statute, prior to which the parties agree it would have been impossible to effect their adoption without the consent of, or notice to, their natural father, whose whereabouts were unknown. Alexander died in 1961.
He also expressed the view that Alexander had not adopted the stepchildren solely for the purpose of qualifying them as beneficiaries under his mother's will, and that "the presumed intent of the testatrix was to include her son's adopted children even though they were adopted as adults."
If the result reached below had turned solely on the issue of Alexander's motive in adopting his stepchildren, we would be less inclined to disturb it, even though we suspect, notwithstanding the absence of any fraudulent intent, that Alexander's probable motive was to assure their sharing in the distribution of his mother's testamentary trust. However, we ...