Opinion
No. 38/114.
02-09-1915
BROKAW v. EMENS et al.
Codington & Blatz, of Plainfield, for complainant Clarence Garretson, of Somerville, for defendants.
Suit by John I. Brokaw, executor, against Lottie Emens and others. Decree construing a will.
Codington & Blatz, of Plainfield, for complainant Clarence Garretson, of Somerville, for defendants.
BACKES, V. C. Caroline A. Voorhees left a will, in which she provided as follows:
"item 7th. The remainder of money to go to my niece Mrs. Lottie Emens of 572 Fifty-Seventh St., Brooklyn, N. Y., and at her death to her children."
Mrs. Emens claims an absolute estate in the fund, and contends that the bequest over to her children is invalid. The complainant, executor, prays a construction of this item and a determination of the rights of the parties thereunder. There seems to be nothing of an involved or complex nature in this provision. The principles and the rules of construction applicable are well settled in this state. In Annin's Ex'rs v. Vandoren's Adm'r, 14 N. J. Eq. 135, it was laid down that:
"The cases rest upon the principle that if the testator, either expressly or by implication, manifests an intent to vest in the first legatee the uncontrolled power of disposing of the property, such power involves the idea of absolute ownership, and the limitation over is void, as inconsistent with the rights of the first legatee."
And in McCloskey v. Thorpe, 74 N. J. Eq. 413, 69 Atl. 973, Justice Swayze, in the Court of Appeals, after a review of the authorities, said:
"An examination of these cases demonstrates that, if the language of the will is such as necessarily to imply an absolute power of disposition, the estate is absolute in the first taker, and such power of disposition is to be implied from an untrammeled power to expend the legacy."
Adopting these deliverances as our guide, and bearing in mind our obligation to give full effect, if possible, to all of the terms of the will, and to carry out the intention of the testatrix, to be ascertained by the well-known rules of construction and interpretation, we must obviously arrive at the conclusion that the testatrix intended that the children of Mrs. Eruens should enjoy the principal of the fund, undiminished, at their mother's death; for the will gives Mrs. Emens no right, directly or by implication, to consume the principal or in any manner to dispose of it. The use—that is, the income— only was given to her for life. To reach any other result would be to entirely ignore the limitation over to the children, which, in the absence of compelling deductions or inferences to the contrary, to be gathered from the language of the will, is altogether unwarranted. See Tooker v. Tooker, 71 N. J. Eq. 513, 64 Atl. 806.
The executor's account has been confirmed by the orphans' court of Somerset county, and he has in hand for disposition, under the quoted item of the will, $3,800, which he will be directed to pay to Mrs. Emens, upon her giving security as provided by law. 3 Comp. Stats. p. 3089, § 8.
Two of Mrs. Emens' children are of age, and by their answer have expressed their desire that their share of the estate be paid to their mother. But I apprehend that this cannot be done without endangering the estate. The limitation over was to all of the children of Mrs. Emens and will let in those hereafter born. If Mrs. Emens can prove that she is beyond the child-bearing period, it may be decreed that the shares of the consenting children be paid to her upon their giving releases to the executor.