Opinion
Argued February 11th, 1938.
Decided May 17th, 1938.
On appeal from the court of chancery.
Messrs. Davies Davies ( Mr. Shelton Pitney and Mr. Frank J. Davies, of counsel), for defendants-appellants Minnie Coward and others.
Mr. Percival G. Cruden and Mr. Merritt Lane, for the complainant trustee-respondent. Mr. Russell E. Watson, for the defendants-respondents Hattie C. Woodruff, Ruth W. Perry, Mary W. Hoff, now Mary W. Rice.
Messrs. Carey Lane, for the defendants-respondents Hattie C. Woodruff and Harriet W. Smith.
Messrs. Lindabury, Steelman, Zink Lafferty ( Mr. William Rowe, of counsel), for Federal Trust Company, as amicus curiae.
Respondent, Hudson County National Bank, complainant below, as the successor trustee of two separate trust estates created by James S. Coward, deceased, original trustee, for the benefit of his daughter, Hattie C. Woodruff, filed a bill in chancery seeking advice and instructions upon some twenty or more alleged doubtful problems which it encountered in the discharge of its duties in the administration of these estates. A detailed statement of pertinent facts, problems propounded, and answers given thereto, fully appear in the opinion of Vice-Chancellor Lewis, reported in 122 N.J. Eq. 444.
Pursuant to that opinion a final decree (dated December 6th, 1937) was entered. The vice-chancellor also made an order (dated December 9th, 1937) allowing taxed costs, expenses and counsel fees. See 123 N.J. Eq. 151.
Appellants challenge the propriety of certain portions of the decree, and the order entered.
We have carefully considered all points argued and have determined that in the interest of effectuating an agreed undertaking between the court and respective counsel, and in the interest of clarity, paragraph 4 of the decree be modified to read as follows:
"4. If the income of any separate unit of property acquired by the trustee, at foreclosure sale, be insufficient to meet the carrying charges thereof, the deficiency should, in the first instance, be paid out of corpus."
Otherwise, the challenged order and decree are affirmed for the reasons stated in the reported opinions of the learned vice-chancellor.
The cause will be remanded to the court below where the decree will be modified consistently with this opinion, and as so modified is hereby affirmed, without costs to any party.
For affirmance — THE CHIEF-JUSTICE, PARKER, CASE, BODINE, DONGES, PERSKIE, HETFIELD, WELLS, WOLFSKEIL, RAFFERTY, WALKER, JJ. 11.
For modification — HEHER, PORTER, JJ. 2.
With modification stated —
For affirmance — THE CHIEF-JUSTICE, PARKER, CASE, BODINE, DONGES, PERSKIE, HETFIELD, WELLS, WOLFSKEIL, RAFFERTY, JJ. 10.
For modification — HEHER, PORTER, WALKER, JJ. 3.