Opinion
07-20-1908
GILLEN v. HADLEY et al.
Sherrered Depue and Joseph H. Brinton, for complainant. Francis Child, for Margaretta W Gillen. H. V. M. Dennis, for Mary E. Hadley and others. Frederick T. Johnson, for infant defendants, Henry P. Simmons Hadley and others. William J. Morrison, for Henrietta F. Simmons.
Suit by Jane E. Gillen against Mary E. Hadley and others. Jurisdiction retained for the purpose of an accounting, and other relief denied.
See, also, 73 Atl. 849.
Sherrered Depue and Joseph H. Brinton, for complainant.
Francis Child, for Margaretta W Gillen. H. V. M. Dennis, for Mary E. Hadley and others.
Frederick T. Johnson, for infant defendants, Henry P. Simmons Hadley and others.
William J. Morrison, for Henrietta F. Simmons.
HOWELL, V. C. Henry P. Simmons, late of the city of Passaic, died on June 16, 1896, leaving a will, which is the subject-matter of this controversy. He left four children, Mrs. Gillen, the complainant, Mrs. Howe, who has since died, and the defendants, Mrs. Hadley and Miss Henrietta P. Simmons. The will makes provision for all the children and disposes of all the testator's property. The bill is filed primarily for the purpose of having this court declare that the vesting of the residuary estate under the will is delayed for so long a period as to be void for remoteness; or, in other words, that the provisions of the will in relation to the disposition of the residuary estate are void, because they violate the rule against perpetuities.
This question was argued fully and with distinguished ability by the counsel who appeared in the case; but, notwithstanding their earnest efforts to obtain a decision on this main question, I find that a preliminary question presents itself, which, it appears to me, has already been disposed of by the Court of Errors and Appeals in such a way as to preclude me from considering at present the validity of the devise. Several years ago Miss Henrietta Simmons, one of the defendants in this suit, brought an action of ejectment against Mrs. Hadley and her husband, who are the trustees under the will and as such hold the legal title to and are in possession of the residuary estate; Miss Simmons claiming, as the complainant here now claims, that the disposition of the residuary estate was void for the reason that it violated the rule against perpetuities. The case is reported under the name of Simmons v. Hadley, 63 N. J. Law, 227, 43 Atl. 661. In the judgment delivered by Chancellor Magie there is a discussion and a settlement of the preliminary question which I have referred to.
The tenth paragraph of the will makes the following direction in regard to Mrs. Gillen: "The share of the net income from my said estate so set apart from time to time as aforesaid for the benefit of my daughter, Jane Elizabeth Gillen, shall be by my said trustees paid out from time to time, at their discretion, for the comfortable support and maintenance of my said daughter, and of her daughter, Margaretta Westervelt Gillen, during the widowhood of my said daughter, Jane Elizabeth Gillen; upon the remarriage or decease of my said daughter, Jane Elizabeth Gillen, said share of the net income of my estate shall be by said trustees paid out from time to time, at their discretion, for the comfortable support and maintenance of my said granddaughter Margaretta, until she shall have arrived at the age of twenty-five years, or so soon thereafter as her mother shall have remarried or deceased, my said trustees shall pay over and convey," etc. The eleventh paragraph makes the following provision for the daughter Henrietta: "The share of my estate so set apart as aforesaid for the benefit of my daughter Henrietta, shall be paid out by my said trustees for the comfortable support and maintenance of my said daughter for and during her natural life." These provisions are referred to in Chancellor Magie's judgment as follows: "The trustees are to dispose of the income set apart for Mrs. Gillen from time to time for her support and maintenance and for the support and maintenance of the plaintiff [Henrietta P. Simmons, one of the defendants in this suit] for her life." It was held there that it was the design of the testator to withhold from the plaintiff in that action the legal title to and possession of the general residuary estate, through the instrumentality of an active trust which contemplated a payment of the two annuities above mentioned, both of which, by the terms of the will, are to expire within the limitation of the rule against perpetuities, and that the trustees took the entire residuary estate as long as they were required to pay the two annuities.
The two annuitants are still living, one is the complainant in this suit, the other, a defendant, and, in view of the interpretation given to the will by the Court of Errors and Appeals, I feel bound to say that the suit has been prematurely brought. I do not see how the question presented by the bill can be raised and decided during the lifetime of Mrs. Gillen or Miss Simmons. Ordinarily a decree on conclusions of this nature would be a decree dismissing the bill; but it has already been said by Vice Chancellor Pitney in this case (Gillen v. Hadley, 72 N. J. Eq. 505. 66 Atl. 1087) that the bill has a purpose altogether independent of that touching the construction of the will and the ascertainment of the legality of the trust, and that is, for the purpose of obtaining an accounting. It does appear from his opinion that proceedings are pending in the Prerogative Court, on behalf of the trustees, to have their accounts stated and passed, and while the Prerogative Court, which was the court in which the will was probated, is a proper jurisdiction for entertaining the accounting, yet seven days before the accounting proceedings were begun in that court, the bill in this case was filed, so that this court obtained jurisdiction of that portion of the subject-matter of the bill prior to the filing of the account in the Prerogative Court.
This court will therefore retain its jurisdiction over the accounting and deny all other relief.