text:
    Metropolitan Life Insurance Company, a corporation, complainant, v. Geraldine Tesauro and Maria D. Tesauro, defendants.
    [Decided May 12th, 1923.]
    1. A change of beneficiary in an insurance policy cani only be effected in the manner provided by the policy.
    2. Where an insured son turned a policy over to his wife, and by letter directed the insurer to change the beneficiary in the policy from his mother to his wife, but the letter and policy were never delivered to the insurer at its home office, as required by the policy, and such change was not endorsed on the policy, the beneficiary named in the policy was not divested of her interest.
    3. Where a widow, believing that she was the beneficiary under an insurance policy, paid some of the premiums to keep the policy alive, for the benefit of the beneficiary, the widow is entitled to be reimbursed for such payments.
    On final hearing.

      Messrs. McDonough McDonough, for Maria D. Tesauro.

      Mr. Robert Newton Crane, for Geraldine Tesauro.
   Backes, V. C.

This matter comes before me on the pleadings and an agreed state of facts. The Metropolitan Life Insurance Company issued a policy on the life of Domenico Tesauro for $3,000, payable at his death to his mother, Maria D. Tesauro. The policy contained the following provision:

“This policy is written with the right of the insured to change the beneficiary. When such right has been reserved, and if there be no written assignment of this policy on file with the company, the insured may [while the policy is in force] designate a new beneficiary, with or without reserving right of change thereafter, by filing written notice thereof at the home office of the company accompanied by the policy for suitable endorsement. Such change shall take effect upon the endorsement of the same -on the policy by the company and not before. If any beneficiary shall die before the insured, the interest of such beneficiary shall vest in the insured.”

During the month preceding his death the insured married Geraldine Tesauro and turned over the policy t.o her and, by letter, directed the insurance company to change the beneficiary from his mother to his wife. The letter and the policy were never delivered to the home office of the. insurance company in Hew York and, of course, the change of beneficiary was not endorsed on the policy. Upon the death of the insured, the widow demanded the insurance and brought suit on the policy, whereupon the insurance company paid the money into this court and obtained an induction restraining the suit and a decree directing the mother and widow to interplead. The question is who is entitled to the insurance. The law is that a change of beneficiary can only be effected in the manner provided by the policy for such change. It was so held in Sullivan v. Maroney, 76 N. J. Eq. 104; affirmed, 77 N. J. Eq. 565, and followed in Anderson v. Broad Street National Bank, 90 N. J. Eq. 78; affirmed, 91 N. J. Eq. 331.

There is no doubt that the insured intended to make the change, but as the written notice to that effect was not delivered at the home office of the insurance company, accompanied by the policy for suitable endorsement, and as the change of beneficiaries was not endorsed upon the policy, the beneficiary named—the mother—was not divested of her interest. The fund will be ordered paid to her.

The widow, believing that she was the beneficiary, paid some of the premiums, it is said. If she did so to keep the policy alive she is entitled to be reimbursed. Tepper v. Royal Arcanum, 59 N. J. Eq. 321; Gifford v. Gifford, 93 N. J. Eq. 299.


source: Caselaw Access Project

author: Backes, V. C.

license: Public Domain

text:
    The City of East Orange, complainant, v. The Delaware, Lackawanna and Western Railroad Company and The Morris and Essex Railroad Company, defendants.
    [Decided May 12th, 1923.]
    Where a city -and a railroad entered into a contract stipulating that the railroad tracks will he raised so as to'rest upon an elevated roadbed supported by retaining walls where necessary, their passenger stations and other facilities relocated, altered or reconstructed, and the streets intersected by the railroad changed, vacated or relocated, all as shown on certain identified plans, and the railroad now proposes to construct on the lower platform of the station eighteen glass front stores, not shown on the identified plans, such action will be enjoined, especially when the city has spent large sums of money in relocating, curbing and paving streets in accommodation of the railroads’ scheme of elevation of its tracks.

      ■Mr. Walter C. Ellis, for the complainant.

      Messrs. Oongleton, Stallman ,& Hoover {Mr. Stallman), for the defendants.
   Backes, V. C.

When the public utilities commission ordered the Delaware, Lackawanna and Western Railroad Company and its lessor, the Morris and Essex Railroad Company, to elevate their tracks through the city of East Orange, the railroads and the city entered into a contract whereby it was agreed that

“The railroad companies’ tracks will he raised so as to rest upon an elevated roadbed supported by retaining walls where necessary, their passenger stations and other facilities relocated, altered or reconstructed, and the streets intersected by the railroad changed, vacated or relocated, all as shown on the .following plans which are hereto annexed and made a part hereof and identified by the signatures -of G. J. Ray, chief engineer of the railroad companies, and Charles H. Martens, mayor of the city.”

New stations were to be built on the sites of the old Brick Church and the East Orange stations. Plan No. 7 shows the layout of the Brick Church station, with which this litigation is chiefly concerned. The railroads agreed to erect the station in substantial conformity to this plan, and they have since done so. The plan of the elevated structure shows a station facing two streets paralleling the railroad, McKinley avenue to the south and Railroad place on the north, midway between Halstead street on the east and Harrison street on the west, with platforms on the track and street levels extending from.the station east and west to Halstead street and Harrison street, a stretch of over five hundred feet in either direction. Stairs at these streets provide access to the upper platform in addition to those in the station proper. The plan of the lower or street level calls for concrete pillars, twenty feet apart longitudinalty, and four in a row, to support the elevation and a concrete platform with sixteen parking bays, eight opening on McKinley avenue and eight on Railroad place, east of the station, each bay capable of accommodating two automobiles. The new East Orange station is of similar design. The railroads now purpose to construct on the lower platform of the Brick Church station eighteen glass-front stores, one between each row of columns and to eliminate the parking bays, made necessary by the proposed stores, and threaten to. put some in the East Orange station. The city protests and complains against this violation of the terms of the contract and prays an injunction. I think it is entitled to relief. In the contract with the railroads the city on its part undertook to relocate streets, open new ones, curb and pave them, change grades, relocate •sewer, water and gas mains, and do many other things, all in accommodation of the railroads’ scheme, and it did so at an expense of over half a million dollars. Its compensation for this great outlay was, in the main, the imposing and attractive stations of open column construction and commodious platforms. Its recompense was not, of course, artistic and beautiful stations simply to be appraised and admired as a railroad project, but municipal benefits and advantages that naturally flow to: a community from such structural adornments. Growth in population, enhancement in the value of property, increased ratables, and not the least, civic pride, were some of the elements that induced the city to co-operate so generously with the railroads to bring to it the character of stations it bargained for.

More than that, the railroad runs, practically, through the centre of the city, and I am told by counsel that in the negotiations between the city and the railroads the. city 'steadfastly held out for the open column construction, and for the reason, as he puts it, “the authorities did not want the city to be divided by a ‘Chinese wall’.” The prospect afforded by the open column construction was its keen concern and the bone of contention with the railroads.

The railroads seem to take the stand that the stations were designed and selected solely with an eye to railroad operation, and that so long as the railroads furnish adequate facilities to their patrons the city and the taxpayers, who helped pay for the improvement, have no concern and will suffer no prejudice by the intended diversion, and therefore are without just cause for complaint. This narrow and selfish view commends itself no more than does the argument that, as the stations are built on the private right of way of the railroads and constitute private property, they cannot be deprived of the use of them in their own chosen way (in this instance by the erection of stores to let for commercial purposes) unless it be found as a matter of law that the manner of the lower level construction amounts to a dedication to public use. Both are beside the question. Stores for non-railroad purposes were never within the contemplation of the contracting parties and they would be an unwarrantable intrusion’upon the privileges of the city, assured to it by the contract. The contract, which the railroads covenanted not to deviate from without the consent of the city, is controlling and compelling and it does not lie in the mouth of the railroads to say that the city will not be grievously injured or that it will suffer no great wrong by their failure or refusal to comply substantially with its terms. The city paid the price for the particular type of station and the railroads must live up to their contract.

What has been said applies also to the parking bays. Their elimination is not justified because, as is contended, there is an abundance of parking space in the streets, immediately adjoining the platform, nor because, as is claimed, longitudinal parking alongside the platform is more practical and convenient. The city is not called upon to debate these, reasons for evading the contract, even though they have merit. It is entitled to a performance of the contract in accordance with its terms, and an injunction will be advised.

If the railroads attempt to carry out their threat to build stores between the columns at the East Orange station the injunction may be extended to that situation.


text:
    Susanna Papsco et al., complainants, v. Michael Novak et al., defendants.
    [Decided June 8th, 1923.]
    1. A court of equity may declare a deed which is absolute on its face to be a mortgage, and the facts may be proved by parole evidence.
    2. If the intention of the parlies was that the instrument should constitute security for the payment of money or the performance or non-performance of any other act, then it is deemed a mortgage; but if a real sale was intended, then it takes effect according to its terms, even though a contemporaneous right or privilege to purchase back the property was contracted for by the vendor.
    3. Evidence examined, and held that the deed in question was in equity a mortgage.
    On final hearing.

      Mr. William Greenfield, for the complainants.

      Messrs. Biker & Biker {Mr. Andrew Van Blarcom), for the defendants.
   Backes, V. C.

This bill is filed to have -a deed, absolute on its face, declared to be a mortgage, and to-redeem. The complainants, two elderly women, were in financial distress and foreclosure proceedings were threatening when they applied to Xovak for assistance in January, 1916. They had just previously obtained small emergency loans from a friend, Carl Kasimer, to whom they had conveyed the premises here involved, and other property, as security. Kasimer, at complainants’ request, conveyed to Xovak. Xovak’s proposition to the complainants was, as I find the fact to be, that he would pay the building loan arrearages on the first mortgage, the taxes then due, and other liens, if any, take up the second mortgage then about to be foreclosed, and hold and manage the property for from two to five years, and return it to them upon repayment, within that time, of his outlay, six per cent, interest and $200 for his services, and upon default it was to belong to him.

The complainants offered to redeem within the time, but Xovak refused to re-convey, setting up then, as he does now, that he purchased the property. I have little faith in Xovak and his testimony The complainants were trying to save, not sell, their property. Xothing was paid to them by Xovak for their equity. His claim that they feared a deficiency judgment by which the rest of their property might be taken from them, and that relieving them of this possible misfortune formed the consideration, is, in my opinion, pure fiction and of recent origin. Xothing in the case lends support to Xovak’s disingenuous assertion. The attending circumstances and the decided weight of the evidence is clearly in favor of the charge that the property was pledged as security, with the further condition that it was irredeemable after five years. The transaction has the -well-recognized earmarks of a -mortgage. The right of a court of equity to declare a deed or bill of sale, which is absolute on its face, to be a mortgage, is clear, as is also the competency of parole evidence to prove the fact. The question turns upon the actual intention of the parties at the time of the transaction. If that intention was that the instrument should constitute security for the payment of money or the performance or nonperformance of any other act, then it is deemed a mortgage; but if a real sale was intended then it takes effect according to its terms, even though a contemporaneous right or privilege to purchase back the property sold was contracted for by the vendor. Cake v. Shull, 45 N. J. Eq. 208. See, also, Crane v. Bonnell, 2 N. J. Eq. 264; Lokerson v. Stillwell, 13 N. J. Eq. 357; Hogan v. Jaques, 19 N. J. Eq. 123; Phillips v. Hulsizer, 20 N. J. Eq. 308; Sweet v. Parker, 22 N. J. Eq. 453; Winter v. Earl, 52 N. J. Eq. 52.

A decree will be advised directing Novak to convey to the complainants upon payment of what is due him, to be ascertained by an accounting before a master.

Novak’s contention that he should not be called upon to account for the rents, issues and profits during the time he held the property because it was agreed that they were to belong to him, is characteristic. He rests his claim upon an allegation in the original bill (the bill was twice amended) that he was to have the usufruct. My earlier impression was that I was bound by the allegation, but upon further reflection I have concluded that that is not so. The allegations that bind as pleadings are those contained in the second amended bill, the issues of which were tried and now decided. The disserving allegation of the original bill is, however, to be considered as a circumstance in weighing the evidence and determining where the truth lies. When the case was first opened the bill was found to be defective as to parties and it was ordered amended. The amended bill, like the original, sounded in trust more than in mortgage and at the conclusion of the hearing the complainants were directed to again amend so as to conform to the proofs, that the deed was given as a mortgage, and also to overcome the position taken by Novak’s counsel that the property was held in trust, and that the trust was uninforceable under the statute of frauds. Hooking upon the disserving statement merely as evidence in the cause it does not strike me as of importance. Novak is not to be permitted to avail himself of it because of his utter repudiation of his deed as a mortgage, and it ought not to be held against the complainants in view of their testimony, and that of others, as to what the real arrangement was, because of their ignorance and illiteracy and inability to express themselves intelligently in our language. If the solicitor who drew the pleadings had as much difficulty in understanding the complainants as I had at the hearing, it reasonably can be attributed to his misunderstanding. My notion is that nothing was said in the negotiations about what was to become of the rents, issues and profits, and indeed I think Novak gave that little concern, and it concerned him little. The discussion of the terms on which he was to hold was so much idle talk to him. He never expected the complainants to be in a position to repay, and title meant ownership to him from the start.' He is not inexperienced in helping his unfortunate and confiding fellow countrymen out of their troubles, and he helped these lone women in the hope and expectation that the days of their need would outlast the right to redeem.


author: Griffin, V. C.

text:
    Walter Morrison, individually, and as executor of the last will and testament of Charles Morrison, deceased, et al., complainants, v. Grace Morrison, defendant.
    [Submitted September 8th, 1922.
    Decided September 8th, 1922.]
    1. Donor, aged about seventy-five years, made several gifts to his daughter, aged about thirty-five years. He had one son and two daughters, one of whom was the donee, who was unmarried—the son and the other daughter were married for a number of years. The wife of donor died about sixteen or seventeen years ago, since which time the donee was his housekeeper. She was rather simple minded; and having found that the gifts were voluntary and not induced by undue influence, the question left for decision is, Wtere the gifts, or either of them, improvident? On February 18th, 1918, he gave the donee $2,409, at which time he reserved, to himself a house valued at $4,500 and about $5,000 in band.—Held, where several gifts are made at different periods of time, later gifts might be held improvident without impairing the validity of earlier ones—the $2,409 gift held valid.
    2. Where, under the above circumstances, the donor made a gift of a house valued at $4,500 to the same daughter, retaining upwards of $4,200 in bank, and considering his age and condition of health, which justified the belief that his death would occur in the near future—Held, that the gift of the house was not improvident.
    3. Pearce v. Stines, 19 N. J. Eq. 51, approved and followed.

      Mr. Robert H. Doherty and Mr. William R. Gannon, for the complainant Walter Morrison.

      Mr. Marie Townsend, Jr., for the complainant Ethel Daly.

      Mr. Eric Jentz and Mr. William E. Sewell, for the defendant.
   Griffin, V. C.

The bill in this cause was filed by Charles Morrison in his lifetime to set aside a conveyance which he made to his daughter in May, 1920, when he was about seventy-five years of age, and also a gift of moneys on deposit in the Provident Institution for Savings, on February 13th, 1918, amounting to $2,409. Various grounds are alleged why they should be set aside, namely, fraud, undue influence, lack of independent advice, and that the gifts were improvident.

The claim is that the donor was enfeebled in body and mind, and under the dominating influence of his daughter, the defendant, now aged thirty-five years. The complainant had three children, two daughters and a son.

The defendant is unmarried; the other daughter and son have been married for a number of years. The mother died some sixteen or seventeen years ago. Since that time the defendant kept house for her father, who was suffering, according to the doctor, in his latter years, with a chronic Bright’s disease, and had a rheumatic tendency, and he says that he would urinate as he walked across the floors in the house, in the presence of his daughter, with only his undershirt on. At the time that he made the gift of $2,409 to the defendant he was' still possessed of the house where he resided, part of which was rented, and from which he derived an income. He was also working as a ship-caulker; and there is no evidence that he was not working steadily at the time he made the gift of the bank deposit. He also had moneys in New York banks amounting to over forty-two hundred dollars. The defendant was never paid any wages; she merely received her clothing and board and lodging, and my recollection is that the father said, when he gave the money to her, that it was for her kindness and services. He was not bound to do this, because, in the law, being his child and a member of the same family, no presumption arises that there was a contract of hiring; nevertheless, there was a moral obligation on his part which he might readily satisfy by a gift of these moneys—in fact, at the time he signed the deed he said the services rendered were in value largely in excess of the value of the property.

After the deed was made, in Majq 1920, the son, it seems, called to see his father more frequently, and had knowledge of the conveyance, which was recorded. One day in September, or October, he called; the front door was locked, the bell apparently was out of order, and he went around to the kitchen door and entered, and saw his father there with his sister, and, in substance, he says that the father complained that his daughter was not treating him properly, and the son took the father with him, and afterwards, on April 2d, 1921, this suit was brought by the father to set aside the conveyance and the gift of moneys, and thereafter he made a will giving practically everything to his son, and small sums of money to his two daughters.

He died on July 31st, 1921, about fourteeen months after making the conveyance. Caveats were filed against the probate of the will, and it is alleged that the claim was that the will was executed under the undue influence of the son, who is the chief beneficiary, and the claim also was that the man was not of sound mind at the time of the making of the will. The orphans court sustained the will. I am not so clear whether it was on stipulation or not, because the record was not offered in evidence; but, in any event, about the time of the trial in the orphans court, or shortly thereafter, the brother expressed a willingness to divide the estate into thirds, which would include the proceeds of the sale of the lands conveyed to the defendant (which had been sold for $10,000), and also the gift of $2,409 and an item of $800, to which reference will be made hereafter, and whatever moneys were left over, parcel of the moneys in the Few York banks. It seems that the moneys in the Few York banks stood in the name of the complainant, Charles Morrison, and he brought suit in replevin to recover the bank books from the defendant, obtained the books, drew out the moneys and had them in his possession while residing with his son at Eosendale, Few York, in the Catskills. When he died, there was $500 left over; so that in the short period of less than a year this old gentleman had disposed, in some manner, of about $3,700, and gave the remaining $500 to his son.

There is an intimation (and I am not certain whether it appears in the record, or was merely the statement of counsel) that this son first denied having ever received any part of the $4,200, but finally admitted that he received $500 from his father. He said his father could not walk in that hilly country and took taxicabs to tak'e the air. There is something very suspicious about this, although, so far as I can now perceive, there is nothing in the evidence which more than creates suspicion on the probable acquisition of these moneys by the son, due to the fact that he resided in the same household, and after the testator’s death the money was not found.

Dealing with the personality of the defendant, she appears to me to be a simple-minded girl; she does not impress me as being even of average mentality. She acted, on the stand, more like a child than a woman of thirty-five. She answered the questions, however, fairly and honestly. At some questions, which probably did not call for a display of such conduct, she smiled and laughed. On the whole, however, she exhibited marks of refinement, but she did not exhibit the slightest mark of such character or disposition as would enable her to dominate her father, and I am satisfied that whatever he did was done voluntarily to protect his one child who was faithful to him for so many years as against children who were married and settled down away from his household, and who seldom visited him. The others were married, and were earing for themselves. The defendant was unmarried, and after the father died would be compelled to depend on her own exertions for her livelihood. She had allowed the prime of her life to pass in her devotion for her father; and if the disposition that he made of his property by gift was contained in a will, no one could say aught against its justice. But it was made by deed, which was the voluntary act of the father, free from even a suspicion of undue influence exerted upon him by his daughter; but if the gifts were improvident, and 'the man, somewhat enfeebled by age, with his mentality somewhat impaired, in making the gifts committed an improvident act, and did not have independent advice, and did not fully comprehend the act, then the conveyance must be set aside as improvident.

When the gift of the lands was made to the daughter, what was his physical condition P Dr. Connolly testifies that he was decrepit. The defendant does not say that he was extra strong, and she says that later on he became somewhat weak,. although he maintained the same general condition. Dr. Connolly says his disease was progressive. It is a significant fact, however, that on December 24th, 25th, 27th and 25th, 1919, and also January 31st, 1920, he worked at his trade. The trade of a shipcaulker, which keeps a man in the air, exposed to the winter weather, and on the water front, to my mind indicates that the man was stronger physically than the witnesses would have us believe. This work was done about four months before the deed in question was made. At that time, in addition to this property, he had about $4,200 in the New York banks. The question—and the only question in the whole case,, that I can see—is, first, being possessed of this real estate (which at the time of the gift to the daughter was regarded as worth $4,500, but a year and a half later sold for $10,000), was this gift improvident if he still held $4,200 in cash, considering, also, his age and the probability that his working days were about to terminate, or, at least, would terminate in the near future, holding only about $4,200 to care for him for the balance of his days, which, taking the testimony of Dr. Connolly, could hardly be many.

. On March 12th, 1921, the defendant made a contract to sell the real estate for $10,000, and received a deposit of $1,000, which she spent, and the remaining $9,000, or the balance of the purchase price, has been deposited in court.

As to the first gift of $2,409, on February 13th, 1918, this gift was clearly not improvident. Where several gifts are made at different periods of time, later gifts might be held improvident without impairing the validity of the earlier ones. At the time of this gift he owned the house in question, valued at about $4,500, and had in the neighborhood of about $5,000 in bank, making upwards of $9,000; and, as I have found that there was no fraud or undue influence, and it ■tfas the voluntary act of the. donor, the gift was good.

When the deed was made, on May 14th, 1920, the donor had upwards of $4,200 in bank, possibly $5,000. He did not have independent advice, but it was his voluntary deed, 'unaffected by influence which might be considered undue. The onty influence that actuated him in making the gift was love for his child and a purpose to reward her for the services which she had rendered. The question, therefore, is, Was the act improvident? I will not deal at length with this question because it is fully covered in the opinion of Vice-Chancellor Stevens in Pearce v. Stines, 79. N J. Eq. 51, where he analyzes all the authorities and deals with the question as to what proportion of a man’s property given to the donee would be regarded as improvident. Under the circumstances of this case, if he gave to his daughter the house valued at $4,500, and retained the $4,200 in bank; he would have reserved to himself a sum which, in my judgment, did not render the gift of the house improvident.

On the hearing there was offered in evidence the account of the defendant'in the Claremont bank of Jersey City, which showed that, on July 21st, 1920, the defendant deposited in that account $800. Where she obtained these moneys did not, as I recall it, appear in the testimony; and counsel, to my inquiry, could not point to any testimony covering this point. It was suggested, however, that it might have been moneys which she had saved from her allowance for running the house. I, therefore, do not regard this item as being a gift from the father.

The decree will be for the defendant.


author: Foster, V. C.

text:
    Fredericka Ritger, complainant, v. Teresa Montefusco, defendant.
    [Decided May 9th, 1923.]
    1. Where a clause in a will contained two separate paragraphs, the first devising the property to the wife of the testator in fee, and the second providing that any property not disposed of by the wife should go to the children of the testator, naming them, and to any other children he might have at the time of his decease, the second paragraph, even though invalid to limit the estate of the wife, was sufficient to indicate disinheritance of the after-born children within the requirements of the New Jersey statutes, so that the wife acquired title to the property in fee, notwithstanding the birth of other children after the making of the will.
    2. The New Jersey statute regulating the rights of children born after the making of a will, was intended to guard against the unintentional exclusion of a testator of those for whom it was his duty to provide, and should not be construed to give property to after-born children which the will showed the testator intended should go to his wife to the exclusion of such children.
    On bill, &C.

      Mr. Frederic 0. Bitger, for the complainant.

      Mr. A. Leslie Price, for the defendant.
   Foster, V. C.

Complainant has entered into a written agreement to sell and convey to the defendant certain real estate in the city of Newark, which -she claims was devised to 'her in fee by the will of her husband, Peter Ritger, who died on August 19th, 1898. The will was made on January 4th, 1884, and at that time testator had six children living. After the execution of the will seven children were born to Mr. and Mrs. Ritger.

Testator, after directing the payment of his debts and funeral expenses, and bequeathing all of his personal property to his widow, the complainant, by the third clause of his will provided:

“Third—I give and bequeath unto her my said wife aforesaid, ail my real estate of which I shall be possessed of at the time of decease, and wherever the same shall be to her my said wife forever, and she may do with the same as she may see fit and proper, without the let or hindrance of any person or persons.
“And I do further order and it is my will that in case, my wife shall die without disposing of my property, then the same shall be given, to my children, or their legal heirs, in equal portions, to wit, Anton Ritger, Oatharina Ritger, Joseph Ritger, Peter Ritger, Rosalia Ritger and William Ritger, or any other children I may have at the time of my decease.”

Claiming to own the lands in question by virtue of this provision of the will, complainant has filed her bill to compel defendant to perform her contract to purchase the real estate in question from her. ■ Defendant refuses to perform, on the ground that the will is invalid because testator failed therein to provide by settlement, or disinheritance, for his after-born children, in accordance with the requirements of section 21 of the act concerning wills. Comp Stat. p. 5865.

It is conceded, however, that if it be found that the terms-of the will comply with those statutory requirements, then complainant has title to the property in fee and can give good title to defendant for the same. This concession is made in recognition of the authority of Downey v. Borden, 36 N. J. Law 460, and the later cases in which the doctrine of that case has been followed. But it is claimed by defendant that the will is defective, because the third clause consists of, or is divided into, two paragraphs, by the first of which the real estate is given to the widow, apparently in fee, and that in this paragraph no provision is made for the settlement or disinheritance of testator’s after-born children, and it is contended that this omission is not cured by the terms of the second and entirely distinct paragraph of this clause of the will, in which testator directs that in case his wife dies without disposing of the property devised to her, then it shall go to the six living children named, “and [or] any other children I may have at the time of my decease.”

It is admitted that the clause last quoted might be regarded as a provision for the disinheritance of, if not for a settlement for, the after-born children, if it had been used and employed in connection with, and as a part of, the paragraph devising the fee, but that as it was not thus used, it cannot, in the position it occupies on this clause of the will, i. e., in a paragraph subsequent to the one in which the fee has been devised, be considered as a compliance with the statute; for it is insisted that the testator, having made an absolute disposition of his property by one part of his will, in which he makes no provision for his after-born children, cannot, by a subsequent reference to or by a provision for them made in his will, correct this omission.

I am unable to agree with this line of reasoning, or with the result it produces, for it’not only violates the rule universally recognized, that all parts of the will must, if necessary, be considered together, to learn the intent of the testator and to make his will effective, but because it also adds an unwarranted element to the rule of construction, by the insistment that the relative position of a provision in a will must be controlling on the construction of the instrument, notwithstanding the expressed intention and purpose of the testator contained therein to the contrary. Furthermore, to sustain defendant’s contention, would be to ignore the construction placed by this court and by the court of errors and appeals upon this section of the act concerning wills, to the effect that it was the intention of the legislature by this enactment, to guard against the unintentional exclusion by a testator of those for whom it was his duty to provide. Stevens v. Shippen et al., 28 N. J. Eq. 487; affirmed, 29 N. J. Eq. 602; as well as the general rule, which holds that the object of statutes similar to ours, concerning pretermitted children, is to correct and to provide against testamentary thoughtlessness and to give the omitted child such share in the estate of the testator as he would, have received had there been no will. C. J. 838.

In the will under consideration we have neither an unintentional exclusion by testator of his after-born children nor any evidence of testamentary thoughtlessness on his part concerning them. On the contrary, by the express terms of the will, we find testator deliberately disinheriting all his children, and giving his entire estate to his widow; and we also find him, in the same connection, ineffectually endeavoring to provide a settlement for his living and also for his after-born children in the event of their mother’s death without disposing of the property he had given her.

My conclusion is that the provisions of the will relating to after-born children satisfactorily complies with the statutory requirements, and that in consequence, complainant has title to the premises in question, in fee, under the third clause of testator’s will, and I will advise that the motion to strike the bill be denied and that the decree prayed for by complainant be granted.


text:
    Walter E. Koerner, petitioner, v. U. S. Waxed and Coated Paper Co., a corporation.
    [Decided May 22d, 1923.]
    1. Where a machine was purchased by a corporation which after-wards became insolvent, and only partly paid for, and the conditional bill of sale was not recorded until after the receiver was appointed for the insolvent corporation, the seller of the machine is entitled to reclaim it from the receiver.
    2. Possession of such property by a receiver is not synonymous with the statutory words “lien by attachment or levy.”

      Mr. William Harris, for .the petitioner Mayer Coating Machine Company.

      Messrs. Galrielson & Btasse, for the receiver.
   Foster, V. C.

The petitioner seeks the return to it of a certain coating machine which, under contract of May 25th, 1922, was delivered to the defendant corporation under a conditional bill of sale which was not filed or recorded until after a receiver was appointed in this cause. Only part of the purchase price has been'paid and the receiver opposes the return of the machine to the petitioner on the ground that under the provisions of section 5 of the Uniform Conditional Sales act (P. L. 1919 p. 461 ch. 210), the judgment of the company’s insolvency and the appointment of a receiver for it brings the receiver under the protection of the section mentioned, and gives him the levy or lien upon the machine, which this section provides.

Section 5 of the act reads:

“That every provision in a conditional sale reserving property to the seller shall be void against any one who acquires by attachment or levy, a lien upon the goods mentioned therein, before the contract or a copy thereof shall be filed as hereinbefore provided, unless such contract or a copy is so filed within ten days after the making of the conditional sale.”

I am unable to accept this view of the receiver and do not think that the provisions of section 5 are broad enough, or are intended, to include the idea of the property being in the possession of a receiver and making that possession synonymous with the statutory expression, “lien by attachment or levy,” or to give to such possession the protection and effect of a lien or levy.

In the recent case of Commercial Credit Co. v. Vineus, 120 Atl. Rep. 417, Mr. Justice Minturn said:

“That- the statutory language * * * has a fixed and determinate meaning, peculiar to legal procedure, and obviously imports the precedent institution of a legal proceeding in a court of law or equity, as a basis for the existence of the writ and a levy thereunder. A statute, 'therefore, containing such well defined legal terms with reference to the determination of legal rights inter paries must be strictly construed and its plain legal meaning cannot be extended by implication.”

This determination disposes of the contention of the receiver and the application of the petitioner will be granted.


author: Buchanan, V. C.

text:
    John Dale McGill et al., complainants, v. The Trust Company of New Jersey et al., defendants.
    [Decided May 15th, 1923.]
    „ 1. Where provisions in a will for the disposition of a certain part of testator’s estate are replaced by substitutionary provisions in a codicil, the invalidity of some or all of the codicil’s provisions will not revive the provisions in the will, in the absence of .direction by testator.
    2. Where a will is amended by a codicil, the provisions of the will remain effective except to the extent necessary for them to give way in order to give effect to the provisions of the codicil.
    3. Where testator gives the income of a trust fund to his son for life, thereafter to any children the son leaves him surviving, and the corpus to such of those children as and when they attain twenty-five years of age, and in case none attains twenty-five, then to testator’s “heirs of blood,” both of the alternate gifts of corpus contravene the rule against perpetuities and are void.
    4. Where testator gives successive interests in a trust fund to several beneficiaries, and the ultimate gift of corpus is void under the rule against perpetuities, the prior gifts will not be invalid if they do not themselves contravene the rule against perpetuities, unless they are so inseparably interwoven with the invalid gift as necessarily to fall with it, or unless merely incidental to and in aid of the main invalid gift.

      5. Testator gave his residuary estate to a trustee to pay the income from one share to testator’s son for life, and thereafter to use such income for the support and education of any children left by the son, exclusively, until they attained twenty-five years of age, and then to give them the principal; but if none attained twenty-five, to give the principal to testator’s heirs of blood. The son and three infant children of the son survived testator. Held—(1) the alternate gifts of corpus are both void under the rule against perpetuities; (2) the equitable life estate to the son is good; (£) the son’s children take a vested life estate, subject to their father’s iife estate, and subject to being divested in whole or in part by predeceasing their father or by the birth of other children; (4) the corpus passes :by resulting trust to testator’s heirs-at-law and next of kin, subject to the preceding life estates.
    6. Contingent beneficiaries under a testamentary trust are entitled to the aid,of equity to protect their contingent interests, if the contingency be not too remote.
    7. Where there are several separable and distinct issues in a cause, final decrees upon one or more of such issues may be entered separately.
    On final hearing.

      Messrs. Smith, Malón & Herr, for the complainants.

      Messrs. Besson, Alexander & Stevens, and Messrs. Fish & Fish, for the defendant Trust Company of New Jersey.

      Mr. Merritt Lane, for the counter-claimant Alexander T. McGill.

      Messrs. Osborne, Cornish & Shech, and Mr. Thomas Fleming Walsh (of the New York bar), for counter-claimant Eleanor A. Mayer.
   Buchanan, V. C.

Dr. John Dale McGill died November 28th, 1912, leaving a will and a codicil thereto, both duly probated in Hudson county, under the provisions of which the Trust Company of New Jersey was made executor and also trustee. It assumed the duties of executor and trustee and has since been acting as such.

The testamentary design, as expressed by the codicil, was broadly, that the income from the estate should be paid to his two children, Alexander and Eleanor (now Mrs. Mayer), during their lives, and at their deaths to their children—the corpus to go to such children of Alexander and Eleanor as should attain twenty-five years of age, upon their reaching that age. Eleanor has so far had no children; her brother has three—John, Alexander and Charles, all infants of tender years, -and a-11 in esse at testator’s death.

The original bill of complaint was filed by these three grandchildren of testator (by their mother, as next friend), alleging divers improper acts and omissions by the trustee, resulting in loss to complainants, and praying the removal of the trustee and an accounting from it, together with reimbursement of the alleged losses. Generally speaking, the misconduct alleged consists of disbursements out of, or charges against, corpus, which complainants assert should not have been made at all, or should have been charged against income instead of corpus.

The trustee’s answer denies some of the acts alleged, denies the impropriety of the charges against corpus, sets up matter in confession and avoidance and pleads res' adjudicata.

The trustee concedes, and indeed desires, that which all the other parties ask—that jurisdiction of the whole matter of the'trust estate and its administration be taken over by this court from the orphans court (where one or two accountings háve been previously had). I am satisfied that this is a case where that should be done. Issues are raised which can, of course, be determined only in this court, and a consideration of the divers matters involved makes it evident that equity will best be served by taking over jurisdiction in toto.

Testator’s daughter Eleanor, one of the life tenants, by her answer, admits most of the allegations of fact, but denies that any charges were made against corpus which should have been made against income, and denies that complainants have any interest in the estate. She proceeds with a counter-claim, setting up that her father's attempted testamentary disposition, so far as concerns those provisions dealing with the gifts subsequent to the life estates to his own two children (Alexander and Eleanor), is void; that neither her own. possible children, nor Alexander's present or possible future children, nor anyone else, has any valid interest under the will and codicil; that she and Alexander have vested estates in remainder in the corpus, subject only to their own respective life estates; and that hence they are entitled to have the whole estate paid over to them immediately; and prays an interpretation of the will and a decree accordingly. She also makes allegations against the trustee as to its conduct and prays relief in that behalf, somewhat similarly to complainants. These should have been set up, in form, as a separate cause of action or counterclaim, since clearly the cause of action against the trustee in this behalf is entirely separate and distinct from the cause of action to establish her right to a remainder in one-half the corpus. Chancery Rule 59; Cf. Steerman v. Snow, 118 Atl. Rep. 696. The parties have all answered, however, and amendments in that behalf, if necessary, may he made; and will for present purposes be deemed to have been made.

Testator’s son Alexander, the other life tenant (and the father of complainants), filed an answer similar to that of his sister. He also filed a counter-claim against the trustee, including in his allegations a charge that the trustee wrongfully refuses to pay him any income since the commencement of this suit. To the counter-claim of his sister he files an answer submitting to the jurisdiction and determination of the court.

■ The trustee, by its answer to the counter-claim of Alexander, admits the refusal to pay income to Alexander since the commencement of this suit, and claims in justification thereof, the right so to do in order to be able to reimburse itself in the event that it be finally determined that it has made disbursements out of corpus which should have been made out of income.

I. HAVE COMPLAINANTS ANY INTEREST IN TI-IE TRUST ESTATE ?

Testator was domiciled at his death (and for many years prior thereto) in Few Jersey, and it is not controverted that the validity and effect of his testamentary provisions are to be determined by the law of this state.

There are only four ways in which complainants could have acquired an interest in testator’s estate: (1) by direct testamentary gift; (2) by intestacy; (3) by resulting trust; (4) by assignment or transmission from someone taking under one of the three prior ways. Fo proof or claim is made that complainants have acquired any interest in this last manner; and they cannot have acquired anjdhing by intestacy or resulting trust, since Alexander and Eleanor are and were at testator’s death his only heirs-at-law and next of kin.

Examination of the will and codicil shows that there are no provisions under which gifts can be deemed to have been made to complainants except that part of the will which disposes of the equitable interests in the residuary estate given to the trustee, and that part of the codicil which does likewise.

The provisions of the will purport to make a general and complete disposition of the equitable interests in the residuary estate to and among testator’s descendants according to varying circumstances. The codicil purports to make such a general and complete disposition among testator’s descendants; but the plan or scheme of the will in this behalf is entirely different from the plan, of scheme of the codicil.- The latter does not contain mere amendments to the former; it is an entire substitute therefor.

"Where provisions of the codicil “conflict or differ from the provisions of said will, the said provisions of the codicil shall be effective and the provisions of the will which they change and abrogate shall be null and void and of no effect whatever.” This by testator’s express direction in the codicil, and as well also by operation of law. It is entirely clear upon examination and comparison, that the dispositions in the will were intended to be, and are, revoked 'by the dispositions in the codicil of the same subject-matter and among the same beneficiaries.

Being thus revoked they are definitely and finally nonexistent as operative testamentary provisions, just as much so as if testator had physically destroyed them, no matter whether or not the codicil’s substituted provisions, or any part thereof, be held invalid. Doubtless testator might validly have provided in the codicil that if the latter were held invalid the will’s provisions should be thereby revived, but he has not done so. We cannot interpolate such a provision, even though we may believe that testator would have done so if he had contemplated the possibility of the invalidity of the provisions of the codicil. The function of the court is only to construe the will that testator has made'—not to make a will for him. The situation is in nowise analogous to the revival of a will by the revocation of a revoking codicil, or by the failure of probate of a revoking codicil because of defective execution or proof. Where the revoldng codicil • fails of probate there is nothing to revoke the will; where the revoldng codicil is itself revoked, it evidences the second change of intention by testator, and his final intent that the original will shall stand unchanged; but where the codicil is not revoked and is probated, but some or all of its provisions are held invalid, there is nothing to show that testator’s intent is to revive the provisions in the original will. Obviously he did not contemplate the invalidity of the codicil’s provisions or of any of them; he has made no direction to take effect in such contingency, and no one else can do so.

We pass, then, to a more detailed consideration of the codicil to ascertain if complainants have any interest under the provisions thereof.

A codicil being not a complete new will but an amendment to the original instrument, the provisions of the latter remain effective except to the extent necessary for them to give way in order to give effect to the new provisions of the codicil. Den v. Snowhill, 28 N. J. Law 447 (at p. 454; Lyon v. Clawson, 56 N. J. Eq. 642; affirmed, 58 N. J. Eq. 584; Thomas v. Scheible, 91 N. J. Eq. 452. That such was testator’s intent is shown by his language at the beginning of the codicil. By .this codicil, then, testator continues the gift of residuary estate to the executor in trust, but makes different directions as to the disposition of income and corpus of the trust estate, so far as Eleanor and Alexander and their issue are concerned. Briefly stated, the codicil conceives of the trust fund in two undivided parts, which we may call “Alexander’s share”, and “Eleanor’s share.” These were to be respectively two-fifths and three-fifths, but if Eleanor should remarry, were to be one-half and one-half. By a specific condition, if she should live again with William B. Carr (who was her husband at the date of the codicil, but from whom she had already separated) she would receive only an annuity of $1,200. As to “Alexander’s share,” the net income therefrom is to be paid to him for life, then used for the education and support of such children as he may leave, until they arrive at twenty-five years of age, at which time the corpus is to be paid to them; if no child of his reaches twenty-five years, the corpus goes to testator’s heirs of blood.” There are similar provisions as to “Eleanor’s share,” except any children Eleanor might have by Carr are excluded, and she is given.a power of appointment by will, over the corpus of “her share,” to or among any of testator’s blood relations, preferably his immediate descendants.

Of these .nine gifts made, or attempted to be made, by the codicil, we may at once exclude four; complainants, Alexander’s children, could not take an interest under a gift of life estate to Alexander or to Eleanor, nor under a gift of income, or of corpus, to Eleanor’s children. On the other hand, they are expressly designated as beneficiaries in a gift of income and a gift of corpus (of Alexander’s share), and we may also consider the possibility of their taking an interest under the alternate “equitable remainders” in Alexander’s and Eleanor’s share, and under the power of testamentary appointment given to Eleanor.

The express gifts to complainants are contained in these paragraphs of the codicil (following provisions for the payment of income to Alexander and Eleanor in varying shares according to certain contingencies):

“In the event of the death of my son Alexander his share of my net income áhall be used by the trustee of my estate for the education and support of any children he may leave exclusively until he, she, or they arrive at the age of twenty-five years, when the share of my estate from which the-said income is derived shall be equally divided among them, or if only one lives, shall be given to that one outright.
“In the event that the children of my son Alexander should -die before they attain the age of twenty-five years and none survive, then their shares of my estate shall be given to my heirs of blood.”

The rule against perpetuities is in force in this state as a part of the common law. Hewitt v. Green, 77 N. J. Eq. 345 (at p. 361); In re Smisson, 79 N. J. Eq. 233 (at p. 242); Camden Safe Deposit Co. v. Guerin, 87 N. J. Eq. 72; S. C. on appeal, 89 N. J. Eq. 556; Kates v. Walker, 82 N. J. Law 157; Stout v. Stout, 44 N. J. Eq. 479.

That rule requires that all future interests, legal or equitable, in realty (except dower and curtesy and rights of entry for conditions broken) or personalty, which are contingent and indestructible, must be such as necessarily to vest, if at all, within the term measured by the life or lives of a person or persons in being at the time of the creation of the interest and twenty-one years thereafter; otherwise they are invalid and void. Cf. generally, 30 Cyc. tit. “Perpetuities.” Professor Gray states the rule in the following form:

“No interest is good unless it must vest, if at all, not later than twenty-one years after some life in being at the creation of the interest.” Gray Perp. (3d ed.) 174.

(To which he adds, of course, that the rule governs both legal and equitable interests in both realty and personalty.)

The question as to whether the alternate gifts of the corpus or “equitable remainder in fee” in “Alexander’s share” of the estate are to be deemed vested or contingent, has been argued ably and at length, but determination thereof is not essential. As to the gift to those children of Alexander who survive him and arrive at age twenty-five, the designated class of course includes children (if any) born after testator’s death. It is not limited to complainants, but is to “any children he [Alexander] may leave,” when they attain age twenty-five. Even if it be considered that complainants would technically take a vested interest either at testator’s death or at Alexander’s death, subject to divesting by dying younger than twenty-five years of age, I think there can be no doubt that this attempted gift to Alexander’s children is void under the rule against perpetuities.

Gifts over to a class, where the class is open until some future time, are technically vested (unless they are made expressly subject to some other contingency), if there be one or more of the class in esse at the time of the making of the gift. Nevertheless, from the standpoint of the perpetuity rule, they stand on the same footing as purely contingent gifts, since the final membership of the class, and, hence, the actual ascertainment of the persons who will take, will not be determined until the time fixed for the closing of the class. And when the time fixed for the closing of the class is so remote as to conflict with the perpetuity rule, the gift is void. Gray Perp. (8d ed.) 87, 88 §§ 110, 110a; Foulke Perp. 443, 445 §§ 67, 69.

In the present instance the time fixed for the closing of the class is when, first, some child of Alexander reaches the age of twenty-five years. Where a gift is made to such children as reach a certain age the class is closed and the maximum number of members thereof ascertained when the first one reaches the specified age. All children born up until then will have the possibility of coming into share, although no particular one of them will in fact share unless he himself attains the age; but a child thereafter born cannot share— he does not have even a contingent interest. 2 Jarm. Wills (6th Eng. ed.) 1677; Gray Perp. 337 § 379; 40 Cyc. 1480; Ward v. Tomkins, 30 N. J. Eq. 3.

Complainants may all die before their father and without reaching twenty-five years of age. Alexander may have other children and may himself die when none of them is more than three years old, and one or more of them may thereafter reach twenty-five years of age. The class would close at that moment, and that moment is too remote under the perpetuity rule. It is not enough that the contingency may happen within the time limited by the rule; it must necessarily happen, if it happen at all, within that time. If there be a possibility that it may happen after the time limited by the rule, the gift is void. Gray Perp. (3d ed.) 185 § 214; Foulke Perp. 194 § 335; Lew. Perp. *170, 171; 30 Cyc. 1483.

The precise thing that testator has attempted to do in the present case has been frequently used as an illustration of a gift void under the rule against perpetuities:

“Suppose, on the other hand, that land is given to trustees in trust to pay the rents to A. during his life, and on his death to convey the land to such of A.’s children as reach twenty-five. This limitation to the children, being equitable, is not a remainder, and is too remote. For A.’s children may not reach twenty-five until more than twenty-one years after, his death.” Gray Perp. (3d ed.) 304, 305.
“There is often a gift to a class of persons, for example to the grandchildren of a testator, upon a contingency which may happen beyond the limits of the rule against perpetuities; as, for instance, a bequest of money to be divided among those of the testator’s grandchildren who reach tiwenty-five. Such a gift is bad, although the testator has grandchildren living at his death. For although, if the living grandchildren reach twenty-five, they must do so during lives in being at the testator’s death, namely, their own lives, yet as they may all die before reaching twenty-five, the class may ultimately be composed of grandchildren .not born at the testator’s death, and the bequest may therefore vest more than twenty-one years after the end of all lives then in being.” Ibid. 332 § 339.
“But if there is a limitation to some of the children of A., a living person, as reach twenty-two or any other age over twenty-one, and there is no child of A. alive at the time the limitation is created who has reached that age, then the limitation is bad,” &c. 40 Cyc. 1388, and numerous cases cited. See also Foulke Perp. 270 § 448; Lew. Perp 455,

where similar illustrations are used by the authors.

Possibly all of these illustrative examples are derived from the oft-cited case of Leake v. Robinson, 2 Meriv. 363; 35 Eng. Reprint 979, a case which deserves particular mention here not only because of its unquestioned authority during the past hundred years, but also because of its peculiar similarity to the case at bar in so many of the various facts and issues involved. Amongst these points of similarity—there was a gift of realty and personalty to trustees to pay income to one for life, then to his children until they attained twenty-five, then to pay the corpus to them, or, if no child attained twenty-five, to pay the corpus to the life tenant’s brothers and sisters on their attaining twenty-five. -It is held that after-born brothers and sisters are included in the class, that the gift is contingent, and is void fox remoteness because of the perpetuity rule.

Finally, there are at least two adjudicated cases in this state where similar attempted gifts have been held void as against the perpetuity rule—Hewitt v. Green, 77 N. J. Eq. 358, in this court; and Kates v. Walker, 82 N. J. Law 157, in the supreme court.

Taking up next, the gift over (of the corpus of “Alexander’s share”) to the “heirs of blood”—

“In the event that the children of my son Alexander should diel before they attain the age of twenty-five years and none survive, then their shares of my estate shall be given to my heirs of blood.”

This gift also seems contingent and void under the perpetuity rule. For the gift is that if all the children of Alexander die before attaining twenty-five years, "then’’ the corpus "shall he given’’ by the trustee to “my heirs of blood.” The moment of time to which the word “then” refers, the moment of determination of the contingency, is, of course, that instant when there first comes into existence a situation comprising the following concurrent factors: (a) Alexander being'dead; (h) all of Alexander’s children being dead without any such child having attained twenty-five years of age subsequent to Alexander’s death. It is possible, and was possible at testator’s death, that that moment may occur more than twenty-one years after Alexander’s death, for a child may be born immediately prior to Alexander’s death and live to attain twenty-two or more but die before attaining twenty-five, and all other children may have predeceased him without attaining twenty-filve.

On the other hand, even if we accept the supposition or theory that the equitable remainder is vested in the “heirs of blood,” complainants false no interest thereby. Whether by “heirs of blood” testator meant his heirs-at-law; whether he meant all next of kin.or those of either or only those in whom was the blood of a common ancestor, or the blood of testator himself, if the class so designated, took a vested interest at testator’s death and is, therefore, to be determined as of that time, it is perfectly certain that it then consisted of Alexander and Eleanor and no one else, they being his own children and only heirs-at-law and next of kin.

Eor these same reasons that complainants can taire no interest in the alternate gift of the corpus oí “Alexander’s share” to testator’s “heirs of blood,” they can take no interest in the corresponding gift of “Eleanor’s share” to testator’s lawful blood heirs. The pertinent language of the codicil is as follows:

“Should my daughter Eleanor remarry and have issue thereby, upon her death the trustee of my estate shall use her share of the net income thereof for the support and education of her child, if only one, or children if more than one. In the event of the death of said child or children subsequent to the death of their mother and before reaching the age of twenty-five years, the portion of my estate from which the income is derived to which under this codicil they are entitled shall be divided among my lawful blood heirs.
“If my daughter Eleanor shall leave child or children and she be dead and the said child or children arrive at the age of twenty-five years, then, that portion of my estate from which her income is derived shall be equally divided among them.”

Indeed,'the contingent character of the gift to the “lawful blood heirs” is even more clear and obvious from the wording here than in connection with “Alexander’s share,” for here the gift to the lawful blood heirs is expressed as to- take effect only if Eleanor remarry and have issue thereby and such issue all die subsequent to their mother and before reaching age twenty-five. If Eleanor never has issue the “lawful blood heirs” could not take under the words of this paragraph.

Remains to be considered the question of complainants’ interest in the income from “Alexander’s share,” and under the contingent power of testamentary appointment among testator’s “blood relations” given to Eleanor. As to the former, it is argued on the authority of Hewitt v. Green, 77 N. J. Eq. 358, that the entire trust is void; at least as to all interests subsequent to Alexander’s life interest. However, the invalidity of an attempted ultimate gift of corpus by no means necessarily vitiates the entire trust. The general rule is, I take it, rather the other way. The provisions of the will are to be disturbed no further than is absolutely required by the existence of the rule against perpetuities. Foulke, supra, §§ 375, 463; 21 R. C. L. § 57; 5 Am. & Eng. Ann. Cas. 431. In this behalf, Gray (3d ed.) §§ 249e-249g, is illuminating and forceful.

'Where a gift is made to a trustee to accumulate the income thereof until a certain time and then pay over the corpus and accumulated income, if the ultimate gift is invalid the whole trust is held invalid, since the trust to accumulate income, although not in itself void under the perpetuity rule, is merely incidental to and in aid of the ultimate gift; if there had been no such ultimate gift there would have been no direction to accumulate income. Cf. Hillyard v. Miller, 10 Pa. 329; Foulke, supra, § 462; Gray, supra, § 671; 30 Cyc. 1498, and note 70. But the situation is very different where the trust is for the purposes of supporting several independent gifts, whether concurrent or consecutive. In such case, -unless it be impossible so to do, the several gifts are to be separated and those preserved which do- not violate the rule.

Both of these principles are exemplified in the opinion in Hewitt v. Green, supra. There was in that case a gift to trustees to pay certain annuities and to accumulate the balance of income until testator’s youngest grandchild attained twenty-five, at which time the corpus was to be given to the grandchildren then living. There was also a provision that if any of the annuitants were -then still living, so much of the corpus as was necessary to pay their annuities should be retained by the trustees and not paid over until the death of such annuitants. There was a further provision that each grandchild’s “share” of the accumulated income should be paid to him on his attaining twenty-one and that he should thereafter receive the share of accruing income annually. The trust fund was of $100,000 and half the income therefrom would be ample to pay all the annuities. The ultimate gift to the grandchildren was void as against the perpetuity rule and it was held that the provisions as to income, so- far as they enured to the benefit of the grandchildren, were merely incidental to the tying up of the corpus to the remote period, and so must fail with the gift of corpus; but that on the other hand the trust was valid as to the annuities, which were independent gifts and should be preserved, and the corpus was divided so that the trustees should retain a. sum sufficient to yield income to cover the annuities.

It is to be noted, then, that Hewitt v. Green holds the gift of income intended to enure to the benefit of the grandchildren, void, because under the terms of that will the provisions as to that income were merely incidental to and in aid of the ultimate gift. Cf. Gray, supra, § 249h. The provisions of the present will are quite different. In that will there was no gift to, nor provision for, the beneficiaries, whatever, until the attainment of age twenty-one; during the interim the income was to be accumulated. Here the income is to be used for the education and maintenance of the grandchildren, exclusively, from the death of the son, Alexander, until the attainment of age twenty-five, the time fixed for the ultimate gift of corpus. Assuredly where a trust is created to provide a life estate to A, and a subsequent life estate to B, and then a remainder to 0, the invalidity of the gift to C will not vitiate the prior gifts to A or to B. So-, also, if the gift to B were a term for years instead of a life estate. And it can make no difference if the gift following B’s life estate or term for years is a contingent remainder to B himself instead of to a third party, C. The gifts are of separate, successive estates. Neither can it make any difference if the third gift, the contingent remainder to B, is intended to cut short the antecedent life estate or term> for years—that is to say, it can make no such, difference as to make the antecedent life estate or term for years void; it will of course make this difference, that the contingent remainder being void, the antecedent life estate or term for years will not be cut short thereby (unless it clearly appears by the will that testator intended that the occurrence of the contingency which was to be the commencement of -the remainder should operate to terminate the preceding estate irrespective of whether or not the remainder was valid).

Tt seems clear that that is precisely the situation under this will. The trust is to Alexander for life; next (considering it from the standpoint of a single child), to his child, until he attain twenty-five years,, or die earlier; remainder to the child if and when he attains twenty-five, otherwise remainder at his death to the testator’s “heirs of blood.” The gift to each child (preceding the alternate remainders) is either a life estate, subject to being cut short by his reaching the age of twenty-five, and the concurrent (intended) vesting and commencement of the remainder in him, or else it is a term for years (i. e., for so many years as must elapse until he can attain age twenty-five), subject to being cut short by his earlier death and the concurrent (intended) commencement of the remainder in the “heirs of blood.”

In my opinion the gift of income to the children of Alexander is entirely separate from and independent of the (attempted) alternate gifts of the corpus and is therefore not vitiated by the invalidity of the latter, unless the will clearly shows such to be testator’s intention; and no such intention is to be discerned in this will, but rather -the contrary. Of course, consideration as to what is shown by testator’s will as to his intention in the event of a provision being declared invalid, is largely speculative where, as here, there is no expression relative to such a -contingency and it is evident that testator in all probability never contemplated the possibility of such contingency. But this will does show an intent to benefit Alexander’s children by a prior estate terminable at their death or on reaching age twenty-five; and- in the latter event terminable not by a cessation or diminution of their interest, but by an increase thereof; and in the former event (■which, of course, precludes further enjoyment by these beneficiaries for whom he sought to provide), terminable not in favor of any other particular person ox persons, but in favor of (as a sort of last resort) testator’s “heirs of blood,” a class of beneficiaries apparently rather vague and indeterminate in testator’s mind, and especially so if (as is my view) the ascertainment of that class was to be determined as of the date of the contingency upon' which the “heirs of blood” were to take or enjoy.

It is true that there are more than a few authorities (such as Re Johnston’s Estate, 185 Pa. St. 179; Gerber’s Estate, 196 Pa. St. 366; Kountz’s Estate, 213 Pa. St. 390, and a number of decisions in Illinois and New York) holding that where a trust is created with an ultimate gift of corpus thereunder and prior estates for years or lives, if the ultimate gift be too remote and hence invalid, the prior estates are invalid also, on the theory that it is to be conclusively presumed the ultimate gift was testator’s main purpose or object and the prior estates merely incidental; and these authorities are reflected in some of the text books or the text of some of the digest writers. Such a holding is, however, utterly opposed to the rationale of the matter and the weight of authority is overwhelmingly the other way, as is also the decision in Stout v. Stout, 44 N. J. Eq. 479.

Since this opinion was written .the opinion in Graves v. Graves, 1 N. J. Adv. R. 252 (94 N. J. Eq. 468), has been published. It is an authority, in addition to those herein-before cited, for the proposition that the rule against perpetuities is in force in this state as a part of the common law, and also in support of the determination herein that the attempted alternate gifts of corpus are void as contravening the perpetuity rule. It is also to be considered in relation to the question of the validity of the gifts preceding the invalid gifts of corpus.

In that case the ultimate gift of corpus was to testator’s great grandchildren, and there were preceding gifts of income among testator’s children and grandchildren, in varying shares according to varying circumstances, and an annuity to his widow (the several trusts are set forth on page 254 of the opinion). It is held, of course, that the gift of corpus is void, as being too remote. It is also held that testator’s next of kin are entitled to immediate distribution of the corpus, except so much thereof as is required for the widow’s annuity (just as in Hewitt v. Green, supra,, the residuary legatees -were held entitled to the corpus except the amount necessary to pay the annuities). It necessarily follows, therefore, that the prior life estates to the children and grandchildren were deemed void, although the opinion does not specifically state the ground therefor.

A careful reading of the, opinion, and reference to the record in the cause, render it evident, I think, that the basis for the determination in this behalf must necessarily have been (as in Hewitt v. Green, supra), that prior gifts which are only incidental to the effectuation of a main purpose which is void, fall with the main gift; and that none of the prior life estates were separable from the void remainder in fee and the life estates which Avere merely incidental thereto; and that it was impossible under the provisions of the will to separate testator’s intent and purpose as to gifts which were void and those AArhich (if they could be separated) would not be void.

In the fourth clause of the will (not quoted in the opinion) testator expressly and specifically states his intent and purpose that the principal of his estate should remain intact (tied up) “for the benefit of my grandchildren and their families, and to that end” he gives the estate to the trustees with the subsequent provisions as to its disposition by them as to income and principal. By the “families” of his grandchildren he meant, it is clear, his great grandchildren.

In Hewitt v. Green the provisions of the will were interpreted as meaning that testator’s main purpose Aras to tie up the principal until a time which was too remote. In this case interpretation is unnecessary—testator expressly says his main object is to tie up the estate for (inter alia) the benefit of his great grandchildren until a time which is too remote. It is true he says for the benefit of his grandchildren and his great grandchildren, but his language places them on a parity; there is nothing to indicate that his purpose to benefit grandchildren by income was greater than that to benefit great grandchildren by corpus. Hence, it is impossible to separate them, and the gift of income to the grandchildren must be deemed incidental to the intent and attempt to accomplish the invalid main purpose and to fall therewith.

I think it is apparent, from what is said by the chancellor on page 259 of the opinion, that this is what led him to the determination of the invalidity of the prior gifts (except the widow’s annuity, as to which testator’s intent and purpose was of course clearly separable), although he does not so state in terms.

The instant case is therefore just as different from the Graves Case as from Hewitt v. Green. For it was not Dr. McGill’s intent, either in express words or by the interpretation of his will, that the contingently terminable. life estate to Alexander’s children was merely incidental to the main purpose of tying up the estate until a time too remote. As I have hereinbefore explained, in my.view, it is apparent from the whole of the testamentary provisions and from his surrounding circumstances that his main intent was not the tying up of the estate, but to benefit Alexander’s children; to benefit them at least by a life estate even if they should not receive the corpusj the postponement of the corpus till they attained age twenty-five was not the main purpose, but the incidental one; the particular means by which, in his judgment, they would best receive and enjoy the benefit to them which it was his main purpose to bestow.

■ The test is, as always, testator’s intent. In the Graves Case testator himself expressed his main purpose and intent as being to accomplish an illegality—the tying up of the estate for the benefit of great grandchildren. In this case it is to my mind impossible to conclude otherwise than that Dr. McGill’s main purpose and intent (aside from the benefit to Alexander himself) was to benefit Alexander’s children by the income for their fives.

The particular phraseology used by testator in the two quoted paragraphs of the codicil dealing with “Alexander’s share,” differs somewhat from the phraseology of the two corresponding paragraphs dealing with “Eleanor’s share,” but, I think, it is evident that testator’s design and intent with regard to each of the two shares was essentially identical—except for the additional restriction as to “Eleanor’s share” that her children are to be by a husband other than Carr. There was this difference in actual fact—that Alexander had' children living at testator’s death and Eleanor did not; yet the language of the gift of income to them after Eleanor’s death more clearly expresses a fife estate and is more absolute in form than the corresponding provisions as to “Alexander’s share.” I am satisfied, therefore, that under the true interpretation and meaning of testator’s will, considered as á whole and in the fight of his surrounding circumstances (Cf. Torrey v. Torrey, 70 N. J. Law 673, and Coyle v. Donaldson, 91 N. J. Eq. 138), testator by this gift of income to Alexander’s children gave to them an equitable fife estate, commencing at Alexander’s death and subject to being terminated prior to the end of their fives, by the taking effect of the gift of corpus on the attainment of age twenty-five. This latter gift being invalid, there is nothing to cut short the fife estate. The situation in this respect is analogous to that in Drummond v. Drummond, 26 N. J. Eq. 234, where a gift of absolute ownership was followed by an executory devise to another on a certain contingency. The latter beneficiary predeceased testator, and the executory devise thus failing, the original gift was freed from the possibility of divestiture on the happening of the contingency. Cf., also, Brazzalle v. Diehm, 86 N. J. Law 276, and Trenton Trust Co. v. Moore, 83 N. J. Eq. 584; affirmed, 84 N. J. Eq. 194.

This equitable fife estate is as to complainants, doubtless vested, subject to divesting in whole or in part by their predeceasing Alexander or by the birth of other children tc Alexander. Vide supra as to gifts over to a class determinable at a future date. *

I think also that it is comprehensive of the entire income. The language is that after Alexander’s death “his share of my net income shall be used by the trustee of my estate for the education and support of any children he may leave exclusively,” &c. It is the entire income (Alexander’s share)—not a part of it—not such part of it as may be necessary or rea.sonable; or as shall be suitable and proper; nor in the trustee’s discretion. There is no discretion given to the trustee; neither is there any provision to accumulate or for any other disposition of any unused portion. There is nothing' to indicate that testator intended or contemplated that there would, or might, be any unused portion; on the contrary, the language indicates just the reverse. It “shall be used” for the education and support of the children “exclusively.” Corresponding language is used in the corresponding provision as to Eleanor’s share—except that there the word “exclusively” is not used. If this difference has any significance, it, of course, emphasizes, rather than detracts from, the interpretation above mentioned as to Alexander’s share.

The language of this gift to Alexander’s children differs, it is true, from the language of the gift of income to Alexander and Eleanor, which is, that “the net income * * * shall be paid to my children,” &c. It is but natural, however, that testator should not direct that the income be paid to the grandchildren—because some or all of them might be infants, and of very tender years; as, indeed, they were at the time of the execution of this codicil, and are now.

Each case, of course, turns upon the particular language, testamentary scheme and provisions, and circumstances, so that precedent is rare. There are but few cases in this state dealing with the point, and those which I have examined deal with language and circumstances different from those here present. Soames v. Martin, 10 Sim. (Eng.) 287, however, seems to be squarely on all fours. There testator directed the income “to be applied for the maintenance and education” of his'nephew (then an infant). Vice-Chancellor Shadwell held the nephew was entitled to the income for life. This was approved and followed by Vice-Chancellor Hall in Wilkins v. Jodrell, 13 Ch. Div. 564. The addition of the word “exclusively” makes the case sub judice even stronger.

The only gift in the codicil remaining unconsidered, is the power of testamentary appointment.

“My daughter Eleanor shall have the privilege to bequeath at her death, in the event that she die without lawful issue, the share of my estate from which her income is derived to any of my blood relations she may select—but my preference is that my estate go to my immediate descendants.”

That complainants have a contingent interest thereunder, as being members both of the class of testator’s “blood relations” and of the more limited class of his “immediate descendants,” is clear, if the provision be valid; and I think it is. It is argued against the validity of this provision, that it is so bound up with the void gift of corpus as to be inseparable therefrom, and hence to fall with it. I think the converse is clear. By Eleanor’s dying “without lawful issue” testator meant “without leaving issue her surviving,” not “without ever having had issue.” The prior portions of the codicil show that what he had in mind was whether or not she would leave children at her death. If she did, he provided gifts of the income and of principal to them. If she did not, the share was to go to testator’s “lawful blood heirs,” with, however, an alternate or substitute provision that Eleanor may pick out one or more.of the blood heirs or relations instead of having the estate go to them all as a class. Why he made no similar provision as to Alexander’s share, we can only conjecture, but it is immaterial. Possibly, since Alexander already had children, he thought the contingency in his case too improbable to provide for.

As already noted, where one provision of a will is held invalid or void, the other provisions are to be disturbed thereby only where it is necessary. The power of appointment must needs be exercised at Eleanor’s death, and, therefore, the gifts under it, if it be exercised, do not contravene the perpetuity rule. The gift of .the power of appointment is not inseparable from the invalid alternate gift of corpus. It is not to operate at all, if she leave children her surviving; if she leaves, no children her surviving, it is expressly put in as a substitute for the gift over to the “blood heirs;” the gift to them was intended to 'take effect only if Eleanor failed, or did not care, to exercise the power. The argument which is made that testator did not intend that there should be such an unequal division of the corpus as between Alexander and Eleanor as might possibly result from the exercise of this power is utterly without force—for Alexander and Eleanor take the corpus not by virtue of what testator provided, but because of the invalidity of what he did provide and his failure to provide for the contingency of such invalidity. If the gifts over had not been invalid, there are only two possibilities; either he never contemplated that Alexander or Eleanor should ever take any part of the corpus (in which case the argument has no foundation at all) or he contemplated that one or the other might take, as blood heir, all or part of the other’s share. If the latter, Alexander could, as blood heir, take only Eleanor’s share, and he expressly gives Eleanor, by this power of appointment, the ability to prevent that, if she so desires.

On this branch of the case I conclude that complainants have a vested equitable life estate in “Eleanor’s share,” subject to Eleanor’s life estate therein, and subject to defeasance by predeceasing Eleanor; and that they have a contingent interest, under the contingent power of testamentary appointment given to Eleanor.

Complainants, therefore, have the right to file their bill, or rather to have it filed in their name. They would have such right even if their interest in the income were held contingent instead of vested—for the possibility of their actual taking and enjoyment cannot be said to be so remote as to lead a court of equity to deny them the right to protect it. Perry Trusts § 275, and cases cited; also in cases in Note, 7 L. R. A. (N. S.) 1000.

II. HAVE ALEKANDER AND ELEANOR VESTED ESTATES IN REMAINDER IN THE CORPUS ?

I think they have, or at least, what is equivalent thereto. The estates axe equitable, the legal title being in the trustee. As to “Alexander’s share,” there is an equitable life estate in Alexander, followed by an equitable life estate in his children, an estate for their joint lives, vested, as to his present children, contingent as to possible future children. On the death of the survivor of them, or on Alexander’s death, if he leave no children him surviving, what then? The attempted gift of corpus is invalid. The trustee has no beneficial interest. Clearly, there is a resulting trust, corresponding to intestacy if the estates were legal instead of equitable, in favor of testator’s heirs-at-law and next of kin, at •■the time of his death, to wit, Alexander and Eleanor. They are now vested of this equitable remainder in the corpus of Alexander’s share. Their interests therein are of course several, not joint, corresponding to the legal estates by intestacy under the statutes of descent and distribution. They are subject, of course, to Alexander’s life estate and the succeeding life estate in his children.

As to “Eleanor’s share,” they (Alexander and Eleanor) are likewise severally vested of equal undivided shares by way of equitable remainder'—subject, however, in this instance, to Eleanor’s life estate' (which is subject to being cut down to an annuity of twelve hundred dollars in the highly improbable, but still possible, event of a remarriage to Carr after divorce from, or death of, her present husband); next to a succeeding contingent, instead of vested, life estate in possible children of Eleanor by any other husband than Carr; and subject to possible defeasance by the contingent exercise of a contingent power of testamentary appointment by Eleanor.

III. ARE ALEXANDER AND ELEANOR ENTITLED TO IMMEDIATE POSSESSION OE TIIE CORPUS ?

It is evident from what has already been said, that they are not so entitled. As to “Alexander’s share,” their right to enjoyment of full ownership iri prcesenii by merger of their respective several life estates in one-half the principal with their several half interests in remainder, is postponed by the interposition of the life estate to Alexander’s children; as to “Eleanor’s share,” it is postponed by the interposition of the contingent life estate to her possible children, assuming that the also intervening contingent power of appointment could be gotten rid of by renunciation by Eleanor. There is also the further feature -that Eleanor’s own life estate in the one-half the corpus is subject to reduction to an annuity of twelve hundred dollars under the contingency of her still possible future remarriage to Carr. In this connection, it is at least interesting to note the doubt as to what is to become of the balance (over and above twelve hundred dollars) of the income from “Eleanor’s share,” if the contingency just mentioned should occur. The contingency is so remote, however, that it is unnecessary to pursue the inquiry at this time.

* * $ $ $ $

This, then, disposes of the questions arising under the first cause of action in the counter-claim of Mrs. Mayer; and the issues so involved being separable and distinct from the other issues in the suit, a final decree therein may properly 'be entered forthwith, instead of awaiting the result of the consideration of the remaining issues. Such a course, while perhaps unusual, is, I think, in accordance with chancery rule 15 (d); certainly it is within the spirit and reason of that rule. It is advisable in the present case, since an appeal has been taken in the Graves Case (supra), and should any of the parties desire an appeal in this case, on the phases thus far discussed, it may be brought on at the coming term and the two cases-involving the same or similar principles may both be before the appellate court for consideration at the same time.