Opinion
03-06-1933
GARRON et al. v. CHRISTOPHER et al.
David O. Watkins, of Woodbury, for complainants, executors, etc. Norman W. Darker, of Mount Holly, for defendants Rachel S. Christopher et al. Howard Ewart, of Toms River, for defendants Marguerite Newton Preadmore Cox et al. George B. Marshall, of Woodbury, for defendant Margaret Reilly.
Syllabus by the Court.
Will examined, and held, that legacies of certain numbers of shares of stock, without qualifying words or other reference in the will indicating contrary intention, were general legacies.
Bill by Isabel Knisell Jessup Garron and others, executors of the last will and testament of Joseph R. Newton, deceased, against Rachel F. Christopher and others.
Decree in accordance with opinion.
David O. Watkins, of Woodbury, for complainants, executors, etc.
Norman W. Darker, of Mount Holly, for defendants Rachel S. Christopher et al.
Howard Ewart, of Toms River, for defendants Marguerite Newton Preadmore Cox et al.
George B. Marshall, of Woodbury, for defendant Margaret Reilly.
INGERSOLL, Vice Chancellor.
This bill is for the construction of the will of Joseph R. Newton, deceased, and is heard upon the following stipulations:
"1. A bill was filed in the Court of Chancery by Isabel Knisell Jessup Garron, Gordon A. Block and Woodbury Trust Company, a corporation, of the city of Woodbury, in the county of Gloucester and state of New Jersey, executors of the last will and testament of Joseph R. Newton, deceased, and Isabel Knisell Jessup Garron, of the city of Woodbury, county of Gloucester and state of New Jersey, asking the aid of the Court of Chancery in the construction of the last will and testament of Joseph R. Newton, deceased, and the obtaining of a decree upon complainants' rights thereunder.
"2. The parties defendant to the original bill were Rachel S. Christopher, Florence Newton McCall, Helen Newton Hagen, Samuel Newton, Marguerite Newton Preadmore Cox, Marguerite Newton Preadmore Cox, guardian of Ellie Newton Cox and Benjamin Cox, Margaret C. Reilly and Alma Baker.
"3. The complainants filed an amendment to the original bill, adding as additional defendants Ellie Newton Cox and Benjamin Cox.
"4. Answers have been filed by all of the defendants, each praying that the court construe the last will and testament of Joseph R. Newton, deceased, and each defendant making specific prayers with respect to the adjudication of their respective rights under said last will and testament of Joseph R. Newton.
"5. The complainants and the defendants by their respective counsel hereby stipulate the following facts:
"(a) That Joseph R. Newton, late of the city of Woodbury, died in March, 1931 leaving a last will and testament, which was on April 7th, 1931, duly admitted to probate by the surrogate of the county of Gloucester and letters testamentary thereon issued to Isabel Knisell Jessup Garron, Gordon A. Block and the Woodbury Trust Company, who have takenupon themselves the burden of administering the said estate.
"(b) A certified copy of the will of Joseph R. Newton is hereto attached and made a part of these stipulations.
"(c) Attached hereto is a certified copy of the inventory and appraisement of the goods and chattels, rights and credits and effects of Joseph R. Newton, made by Charles N. Bell and Chester N. Steelman, appraisers, dated April 7th, 1931.
"(d) It is further stipulated that in the adjudication of this matter paragraph two of the original bill shall be considered amended and contain among its recital of the various provisions of the will of Joseph R. Newton paragraph three thereof, which reads as follows, 'I give and bequeath unto my niece, Florence Newton McCall, daughter of my brother Mahlon W. Newton, the sum of ($10,000.00) Ten Thousand Dollars, provided she survive me, otherwise this legacy to lapse and the same to be and become a part of my residuary estate'; the said third paragraph of the will was inadvertently omitted in the drafting of the said original bill.
"(e) The said Rachel S. Christopher, Helen Newton Hagen, Florence Newton McCall, Samuel Newton, Marguerite Newton Preadmore Cox, Ellie Newton Cox, Benjamin Cox, Margaret C. Reilly and Alma Baker have all survived the testator.
"(f) Among the shares of stock owned by the decedent at the time of his death were nine hundred thirty-one shares of the capital stock of the First National Bank of Toms River, New Jersey, one hundred fifty-two shares of which are held as collateral security by the Farmers & Mechanics National Bank of Woodbury to secure two notes, made and executed by Joseph R. Newton, each in the sum of $5,000.00, the first thereof being a promissory note made and executed by Joseph R. Newton to the Farmers & Mechanics National Bank of Woodbury, dated February 24th, 1931, due June 24th, 1931, upon which there has been a payment in cash of $2,500.00 on February 19th, 1932. Interest is due on the original loan of $5,000.00 from June 24th, 1931 to February 19th, 1932, and interest on the balance of $2,500.00 from February 19th, 1932 to date. As to the other thereof, note made and executed by Joseph R. Newton to the Farmers & Mechanics National Bank of Woodbury in the sum of $5,000.00, dated December 23rd, 1930, due April 23rd, 1931.
"Two hundred shares of the capital stock of the said First National Bank of Toms River are held as collateral security by the Pennsylvania Company for Insurance on Lives and Granting Annuities of Philadelphia to secure a promissory note made and executed by the said Joseph R. Newton for the sum of $15,000.00, upon which there is due $15,000.00, and to secure the endorsement of the said Joseph R. Newton on a promissory note of the Saxton-Shale Brick & Tile Company, endorsed by the said Joseph R. Newton for the sum of $4,000.00, due April 10th, 1931, and to secure the endorsement of the said Joseph R. Newton upon an additional note of the Saxton-Shale Brick & Tile Company, endorsed by the said Joseph R. Newton for $3,500.00, due May 14th, 1931, upon which note there has been paid $2,500.00 on February 20th, 1932, leaving a balance thereof of $1,000.00. Interest has been paid on all loans with the Pennsylvania Company for Insurance on Lives and Granting Annuities of Philadelphia to May 31st, 1932.
"The balance of shares of stock in the said First National Bank of Toms River, New Jersey are in the possession of the executors unhypothecated in the amount of 579 shares.
"(g) Among the shares of stock owned by the decedent at the time of his death were eleven hundred seventy shares of the United States Loan Society, of which nine hundred fifty shares were pledged as collateral with the First National Bank of Toms River to secure a loan of the Green's Hotel Company for $4,500.00, the original date of said loan being January 16th, 1931 and due May 16th, 1931. Interest has been paid in full on said loan to February 20th, 1932. $2,500.00 has been paid on account of the above loan on February 20th, 1932, leaving a balance of $2,000.00.
"The balance of shares of stock in the said United States Loan Society are in the possession of the executors unhypothecated, in the amount of 220 shares.
"(h) The shares of capital stock in the Chase National Bank of New York, the Pennsylvania Company for Insurance on Lives and Granting Annuities of Philadelphia, and the National City Bank of New York are not hypothecated.
"(i) The present value of the assets as per schedule hereto attached is $113,482.93, and thereto is also attached a list of securities of doubtful or unknown values.
"(j) The value of all real estate owned is $19,075.00.
"(k) Counsel for the respective parties hereto reserve the right to file briefs herein."
Stipulation of facts:
"In the above entitled matter on final hearing for interpretation of the will of Joseph R. Newton, deceased, the following facts are stipulated and agreed.
"1. Joseph R. Newton died a resident of Woodbury, Gloucester county, New Jersey, on March 25, 1931, leaving a last will andtestament dated May 7, 1930, which was on April 7, 1931 admitted to probate by the surrogate of Gloucester county, and a true copy of the will is annexed to the bill of complaint.
"2. On April 7, 1931, Isabel Knisell Jessup Garron, Gordon A. Block and Woodbury Trust Company, the appointees named in the will, were appointed executors thereof by the said surrogate.
"3. Isabel Knisell Jessup Garron, one of the executors and a legatee under the will, is not related by blood or marriage to Joseph R. Newton, the testator.
"4. Among the assets of the estate at the time of the death of the testator, there were the following shares of stock, of the approximate value on June 15, 1932 set after each:
17 | shares | United Shoe Machinery Co. | @29 | $ 393.00 |
6 | " | National City Bank of N. Y. | @261/2 | 159.00 |
51 | " | The Pennsylvania Co. | @28 | 1,428.00 |
---|---|---|---|---|
113 | " | The Chase Natl. Bank, N. Y. | @22 | 2,486.00 |
1,170 | " | United States Loan Society | @ 7 | 8, 190.00 |
931 | " | First Nat'l Bank, Toms River, N. J. | @60 | 65,860.00 |
5 | " | Neptune Mortgage & Finance Co. | @60 | 300.00 |
8 | " | Durant Motors | @ 1/4 | 2.00 |
120 | " | Home Bldg. Co., Atlantic City | @75 | 9,000.00 |
60 | " | Arthur Burt Shoe Co. | @31 1/4 | 2,500.00 |
20 | " | Arthur Burt Shoe Co. | ||
2 | " | Gloucester County Realty Co. | @ 9 | 18.00 |
100 | " | Woodbury Terrace Co. | @40 | 4,000.00 |
5 | " | Alex Wolfington Sons Co. Pref. | @40 | 200.00 |
Total | $84,536.00 |
"The testator, Joseph R. Newton, was the owner of the same nine hundred thirty-one (931) shares of stock in the First National Bank of Toms River at the time he made his will, to wit, on May 7th, 1930.
And the following shares of stock, of doubtful or unknown value:
35 | Shares | Brodton Company, common stock |
800 | Cotikyan-Oriental Looms, Inc. | |
3/55/100 | " | United States Acceptance Corporation |
60 | " | Wildwood & Delaware Bay Short Line R. R. Co |
25 | " | St. Charles Hotel Co., preferred |
5 | " | Auxiliary Fire Alarm & Telegraph Co. |
266 2/3 | " | Saxton Shale Brick & Tile Co. |
498 | " | Green's Hotel Co. |
4000 | " | Alaska Mines Corporation |
2427 4/10 | Nome Holding Company | |
9909 | Nome Dredging Trust |
"5. The following is a summary of the bequests of stock by the testator:
Fifth | Marguerite P. Cox | 1st Nat'l Bank-Toms River | 40 | shs. |
Sixth | Ellie Newton Cox | " " " " " | 30 | " |
Sixth | Benjamin Cox | " " " " " | 30 | " |
Seventh | Margaret C. Reilly | "" " " " | 40 | " |
Eighth | Isabel K. J. Garron | All of remaining stock in my name after distributing that which is otherwise mentioned in this will, of 1st Natl Bank of Toms River | ||
" | "" " | Chase Natl Bank | 113 | " |
" | "" " | Pennsylvania Co. etc. | 50 | " |
" | "" " | National City Bank | 6 | " |
---|---|---|---|---|
" | "" " | United States Loan Scy | 1,170 | |
Ninth | Alma Baker | 1st Natl Bank-Toms River | 40 | " |
"6. The decedent at the time of his death had no blocks of stock in the First National Bank of Toms River equal or identical in amount with the blocks of stock of that Bank bequeathed in his will. He had 931 shares of the stock of the First National Bank of Toms River in certificates, as follows:
Certificate # 86 | 100 shares |
"# 87 | 76 " |
"#268 | 100 " |
"#269 | 100 " |
"#270 | 70 " |
" #360 | 133 " |
" #279 | 100 " |
" #282 | 52 " |
" #280 | 100" |
" #281 | 100 " |
Total 931 shares | |
Each of the par value of $100.00. |
"7. Decedent had at the time of his death a total of 113 shares of the Chase National Bank of New York, in certificates as follows:
Certificate #F-57594 | 13 shares |
" #C-32213 | 100 |
Total 113 shares |
"8. Decedent had at the time of his death a total of 51 shares of the Pennsylvania Company for Insurance on Lives and Granting Annuities, in certificates as follows:
Certificate #F6217 | for 48 shs. |
#F11057 | " 2 " |
" #F17175 | " 1 " |
Total | 51 shs. |
"9. Decedent has at the time of his death a total of 6 shares of National City Bank of New York, in certificates as follows:
Certificate #C-33073 6 shares
"10. Decedent had at the time of his death a total of 1170 shares of United States Loan Society, in certificate as follows:
Certificate #2407 | 200 shares |
Certificate #2820 | 20 shares |
Certificate # | 308 shares |
Certificate # | 642 shares |
Total 1,170 shares |
"11. In addition to the shares of stock referred to in the language of the will and in addition to the assets in the form of stock set forth in paragraph four above, the testator died possessed of other securities, as follows:
Bonds | |
$500 | First U. S. Converted Libery Loan |
1000 | 4th U. S. 4 1/4% Liberty Loan Bond |
50 | 4th U. S. 4 1/4% Liberty Loan Bond |
Mortgages | |
$6000. | Mortgage, Carlton H. Graves, dated Jan. 3, 1931, premises Burlington County at |
$4000. | Mortgage, Harry L. Cohen, dated Mar. 3, 1927, premises in Cape May County at |
"12. The balance of the testator's estate is made up, as shown by the inventory and appraisement, as follows:
Packardsedan automobile, appraised at | $ 800.00 |
Pierce-Arrow Limousine appraised at | 1,000.00 |
Cash in bank | 947.17 |
Household furniture | 1,246.75 |
Total | $3,993.92 |
"13. The testator died seized of real estate, as follows, all unencumbered.
"Double dwelling situate 38-40 Newton Ave., Woodbury, N. J., as in deeds:
"(1) Mahlon W. Newton, et ux to decedent, dated June 12, 1894, recorded in Gloucester Co. Book 165, page 410.
"(2) Samuel L. Franklin, et ux, to decedent, dated August 13, 1890, recorded in Gloucester county, Book 173, page 465.
"(3) Samuel L. Franklin to decedent, dated July 31, 1907, recorded, Gloucester county, Book 212, page 296.
"(4) George W. Curtis, et ux to decedent, dated July 25, 1910, recorded, Gloucester county, Book 227, page 294.
"(5) Mahlon W. Newton, et ux to decedent, dated July 25, 1910, recorded Gloucester county, Book 227, page 292.
"Vacant lot situate N. 4th Street, Surf City, N. J., lot 27, block 101.
"Saw mill property situate in Salem and Gloucester counties, on the Swedesboro-Franklinville road, as in deed, J. Maurice Wilkins, et ux, et als, and Joseph Jessup, et ux, et als, to decedent, dated March 26th, 1918, recorded in Salem county, Book 138, page 154; recorded in Gloucester county, Book 268, page 447.
"15. Present value of the real estate owned is $20,075.00.
"16. Present value of the personal property, referred to in paragraph twelve herein, is $2,000.00.
"17. Bank loans were made by the testator in his lifetime and certain of the stocks owned by him were pledged as follows:
Farmers & Mechanics Natl. Bank Woodbury
Amount | Dated | Due |
$5,000.00 | 2/24/31 | 2/19/32 |
A payment by the executors from the general assets of the estate was made on account on Feb. 19, 1932 in the sum of $2,500.00.
Interest is due on $5,000 from June 24, 1931 to Feb. 19, 1932, and on the balance of $2,500 from Feb. 1932, to date.
Farmers & Mechanics Natl. Bank Woodbury
Interest is due from
Pledged as collateral security:
Amount | Dated | Due |
$5,000.00 | 12/23/30 | 4/23/31 |
152 shares of stock of First Natl. Bank of Toms River.
Amount | Dated | Due | |
The Penna. Co. | $15,000.00 | 9/16/29 | |
The Penna. Co. | 4,000.00 | 4/10/31 |
Decedent being an endorser on a note of Saxton Shale Brick & Tile Co.
The Penna. Co.
$2,500.00 was paid by the executors from the general assets of the estate on account of this loan on Feb. 20, 1932, leaving a balance of $1,000.00.
Interest was paid on all loans with the Pennsylvania Co. to May 31, 1932 from the general assets of the estate and is due on a total reduced to $20,000.00 from May 31, 1932.
Amount | Dated | Due |
$4,500.00 | 1/16/31 | 5/16/31 |
Pledged as collateral security 200 shares of First Natl. Bank of Toms River $2,500.00 was paid by the executors from the general assets of the estate on account of this loan on Feb. 20, 1932, leaving a balance due of $2,000.00.
Interest was paid by the executors from the general assets of the estate to 2/20/32 and is due on the reduced balance of $2,000 from that date.
Pledged as collateral security 950 shares of United States Loan Society.
"18. By way of summary regarding the stocks mentioned in the bequests in the testator's will:
Stock Owned | Stock Pledged | Unpledged | Mentioned in Will | |
First Natl. Bank of Toms River | 931 shs. | 352 shs. | 579 | 40 shs. |
30 " | ||||
30 " | ||||
40 " | ||||
40 " | ||||
Total 180 " | ||||
U. S. Loan Society | 1170 " | 950 " | 220 shs. | And Balance 1170 shs. |
The Penna Co. | 61 " | None | 51 " | 50 " |
Chase Natl. Bank Natl. City Bank | 113 " 6 " | None None | 113 " 6 " | 113 " 6 " |
"10. Summary of the loans and payments made on account by executors from general assets of the estate:
Original Loan | Payment by Executors | Balance | |
Farmers & Mechanics Natl. Bank, Woodbury | $ 5,000.00 | $2,500.00 | $ 2,500.00 |
Farmers & Mechanics Natl. Bank, Woodbury | 5,000.00 | None | 5,000.00 |
The Pennsylvania Co. | 15,000.00 | None | 15,000.00 |
The Pennsylvania Co. | 4,000.00 | None | 4,000.00 |
The Pennsylvania Co. | 3,500.00 | 2,500.00 | 1,000.00 |
First Natl. Bank of Toms River | 4,500.00 | 2,500.00 | 2,000.00 |
Total | $37,000.00 | $7,500.00 | $29,500.00 |
"20. On the 7th day of May, 1932, the household furniture was sold at public auction for the net sum of $1,962.60. On or about the 7th day of May, 1932, real estate of the decedent was sold at public auction for the net sum of $4,200.00.
"21. All the legatees named in the will of the testator are alive, of full age and sui juris, excepting Ellie Newton Cox and Benjamin Cox, who are minors."
The first matter for consideration is whether the bequests in the fifth, sixth, seventh, eighth, and ninth clauses of the will are general or specific. They must be considered as general. In re Low, 103 N. J. Eq. 435, 143 A. 222. The language used in the case at bar is strikingly like that used in the Low will, and, oddly, covers stock of the same banking company, First National Bank of Toms River, N. J.
I do not consider that the word "absolutely" as used in the ninth clause makes that clause specific and not general. Volume 1 of Kocher's New Jersey Probate Law, p. 548, sets forth the following: "The order in which assets are to he applied to the payment of debts, in the absence of a contrary intention sufficiently expressed in the will, is, (1) the general, or residuary, personalty, not specifically bequeathed nor exonerated or exempted; (2) real estate appropriated to, and not merely charged with the payment of debts; (3) real estate descended whether acquired before or after the making of the will; (4) real estate devised charged with the payment of debts; (5) general pecuniary legacies pro rata; (6) specific and residuary devises and specific legacies pro rata; (7) real and personal property which the testator has power to appoint and which he has appointed by his will."
This has been accepted without exception as the law.
A decree will be advised in accordance with these views.