On appeal from Superior Court of New Jersey, Law Division, Probate Part, Union County.
King, Brody and Landau. The opinion of the court was delivered by Brody, J.A.D.
We must now consider the circumstances under which a testator may lawfully leave a bequest to his daughter on the condition that she obtain a divorce.
Tweedy Prager (plaintiff) appeals from a final order that summarily dismissed her complaint. The complaint challenged
certain provisions of a trust agreement, as amended, between her late father Adolph Donner, grantor of the trust and decedent of the within estate, and First Fidelity Bank, N.A. (defendant), trustee of the trust and executor appointed under the decedent's will. The trust is funded by the decedent's residuary estate and proceeds of insurance on his life.*fn1 Ultimately the principal of the trust is payable to plaintiff's twin daughters. The main provision that is challenged denies plaintiff income from the trust and the opportunity to invade principal until she becomes 65 years old, unless before then her husband Martin Prager dies or they are divorced. Plaintiff argued unsuccessfully before Judge Kentz that the conditions attached to the trust are against public policy and therefore unenforceable because their purpose was to induce her to divorce her husband. We now affirm.
"Testamentary Dispositions are required to be enforced unless contrary to public policy or a rule of positive law." Alper v. Alper, 2 N.J. 105, 114-15, 65 A.2d 737 (1949). Whether a provision that conditions a bequest upon obtaining a divorce is contrary to public policy or a rule of positive law was last addressed in Dwyer v. Kuchler, 116 N.J. Eq. 426, 174 A. 154 (Ch.1934), an opinion by Vice Chancellor Bigelow that plaintiff cites to support her argument. There the decedent created a testamentary trust payable to her daughter "only when and if she shall no longer be the legal wife of Hurlburt Dwyer, either because he shall have predeceased my said daughter, Anna Dwyer, or because of an absolute or qualified legal divorce between them." Id. at 427, 174 A. 154. The Vice Chancellor assumed that the only purpose for the condition was to induce a divorce. He reasoned that such a condition is unenforceable as against public policy because although divorce is lawful, an
"inducement to divorce, is an inducement to the wrong which is the necessary prerequisite of divorce." Id. at 430, 174 A. 154.
Several years later, in a somewhat different context, Vice Chancellor Bigelow was more deferential to the decedent's wishes in an opinion that was affirmed by our highest court. Latorraca v. Latorraca, 132 N.J. Eq. 40, 26 A.2d 522 (Ch.1942), aff'd, 133 N.J. Eq. 298, 31 A.2d 819 (E. & A.1943). There the testator left his widow a life estate on the condition that she not remarry. Quoting from Graydon's Executors v. Graydon, 23 N.J. Eq. 229, 236 (Ch. 1872), rev'd on other grounds, 25 N.J. Eq. 561 (E. & A. 1874), the Vice Chancellor recited the general rule and its exception as follows:
First, as to the remarriage of the widow. "The general rule is, that a condition in restraint of marriage in general, or of marriage to any person whatever is void, and the devise or bequest takes effect. But anyone may limit a gift to his wife to her widowhood, or may annex a condition that it shall go over on her marriage; this is a well-established exception to the rule." [ Latorraca, supra, at 45, 26 A.2d 522.]
Because remarriage, unlike divorce at the time, does not entail wrongful conduct, the Vice Chancellor considered the economic basis for such a condition and enforced it:
Counsel for the widow necessarily admits that a gift of income to testator's widow may be limited to the period during which she will probably most need it, namely, while she remains a widow. But he urges that where testator's purpose is to induce his widow not to remarry, the condition is void. The law makes no such distinction; in this instance the court cannot, and does not, attempt to probe testator's mind and determine his object in making ...