Opinion
12-17-1924
LONG v. KATZENBACH, Atty. Gen.
Henry M. Hartmann, of Trenton, for complainant. Edward L. Katzenbach, Atty. Gen., and Francis H. McGee, Asst. Atty. Gen., for defendant.
Suit by Ella Jeannette Long, executrix, etc., against Edward L. Katzenbach, Attorney General, to construe the will of Hannah E. Martin, deceased. On final hearing. Decree advised in accordance with opinion.
Henry M. Hartmann, of Trenton, for complainant.
Edward L. Katzenbach, Atty. Gen., and Francis H. McGee, Asst. Atty. Gen., for defendant.
BUCHANAN, V. C. Hannah E. Martin died testate, in 1922, the owner of a certain parcel of real estate, in addition to personal property of about $20,000. The real estate comprises a house and barn, the residence of testatrix, worth about $8,000. The bill is filed by the executrix to determine the uncertainty as to the true intent and meaning of the will, so far as it relates to the disposition of this real estate.
In addition to a number of small gifts, the will provides as follows (and these are the only portions material upon the present inquiry):
"Next I give, devise and bequeath to my dearly beloved daughter, Ella Jeannette Long all my remaining property wheresoever situated both real and personal, for the use of herself and her husband the Rev. Wm. A. Long, so long as they both shall live.
"I allso direct that what ever may remain after the death of my daughter, Ella Jeannette Long and her husband Rev. Wm. A. Long, shad be given to deserving Charities. Such Charaties to be selected with thoughtful care by my said daughter and her husband.
"I further direct that they shall bequeath this money within one year after my death, or as soon as they become possessed of it. I allso direct that it shall be given in the name of W. H. Martin, and wife. I sugest, but do not command that this bequest be in New Jersey."
There is no other clause affecting the realty.
Complainant, Ella Jeannette Long, is the sole surviving executrix and is also the beneficiary named in the foregoing provisions. She is also the sole heir at law and next of kin of testatrix. Her husband, Wm. A. Long, predeceased testatrix.
I have no doubt but that, under the will (in view of the prior death of Wm. A. Long), Ella Jeannette Long was given a life estate in the residuary estate, real and personal (including of course the residence property in question), with an added, unlimited power of disposal.
The gift, by the words of the will, is expressly a life estate, and in such case the beneficiary does not take a fee or an absolute estate by reason of the superadded power of disposal. Wooster v. Cooper, 53 N. J. Eq. 682, 33 A. 1050. In the present case the added power of disposal is not express, but I think is clearly implied. See Weaver v. Patterson, 92 N. J. Eq. 170, 111 A. 506, where the question and the authorities are considered at length. The words "whatever may remain," in the present will, afford a stronger basis for the implication of the power of disposal than the wording in some of the other adjudicated cases—importing a clear uncertainty as to whether anything will in fact remain.
I think it is also clear that testatrix intended to give a remainder, after this life estate and power of disposal, to charitable uses, with power of testamentary appointment in Mrs. Long and her husband, or the survivor of them, to designate the particular charities to be the contingent beneficiaries of the remainder.
The complainant of course has a power of sale of the real estate. Her absolute power of disposal of the residuary estate necessarily includes a power to sell and convey the realty forming part thereof. Such power of sale would also be implied from the language of the testatrix, where, after providing for the disposition to charities of the contingent remainder of the entire residuary estate, she directs that the life tenants in making this testamentary appointment of the charities, "shall bequeath this money"—indicating a power of conversion.
A decree will be advised in accordance with the views herein expressed.