Opinion
Argued May 15, 1950 —
Decided May 22, 1950.
Appeal from the Chancery Division of the Superior Court.
Before Judges JACOBS, DONGES and BIGELOW.
Mr. A. Leo Bohl argued the cause for the appellant.
Mr. Charles S. Van Auken argued the cause for the respondents.
On appeal from a judgment of the Chancery Division made by Judge Grimshaw, who filed the following opinion:
Plaintiff seeks a construction of the fourth paragraph of the will of Grace M. Bierce who died on March 10, 1945, a resident of Passaic County. The questioned paragraph is as follows:
"Fourth: I give, devise and bequeath all the rest, residue and remainder of my estate, of whatsoever kind and wheresoever situate, unto my executors hereinafter named, in trust, however, for the following uses and purposes:
"To invest and reinvest the same, and to pay all the income arising therefrom, and so much of the principle as may be necessary, from time to time, for the proper care, maintenance and support of my sister, Mary W. Moore, now of Paterson, New Jersey, for and during the term of her natural life, and upon the death of my said sister, Mary W. Moore, my executors hereinafter named shall then pay to my brother, George W. Moore, and to his wife, May Moore, and to his children, Grace Moore and Lewis Moore, the sum of One Hundred Dollars ($100.00) each.
"All the rest, residue and remainder of my estate, after the death of my said sister, Mary W. Moore, and the payment of the legacies hereinbefore mentioned, shall be paid to my nephew, Clark L. Cornwell. In making this distribution of my estate, I am not unmindful of my sister, Jane E. Cornwell, as I have remembered her through her son, Clark L. Cornwell."
Mary W. Moore, the life tenant, died February 15, 1949. Clark L. Cornwell, the remainderman, died July 18, 1948. All other beneficiaries mentioned in the fourth paragraph of the will survived the life tenant. In view of the fact that Clark L. Cornwell predeceased the life tenant, the question arises as to whether the remainder bequeathed to him was vested or contingent.
In the case of In re Buzby, 94 N.J. Eq. 151, Chief Justice Gummere said at page 153:
"The policy of the law requires that legacies in all cases, unless clearly inconsistent with the intention of the testator, should be held to be vested rather than contingent. Van Dyke's Admr. v. Vanderpool's Admr., 14 N.J. Eq. 198; Neilson v. Bishop, 45 N.J. Eq. 473; Clark v. Morehouse, 74 N.J. Eq. 658. And so, in furtherance of this policy, it is generally held that when the absolute property in a fund is bequeathed in fractional interests in succession at periods which must arrive, the interests of the first and subsequent takers will vest together; and this rule of construction is always applied when it is apparent from the terms of the will that a future gift is postponed to let in some other interest, such as a life estate. Howell, Exr., v. Green, Admr., 31 N.J. Law 570; Tuttle v. Woolworth, 62 N.J. Eq. 532 ; Kinkead v. Ryan, 64 N.J. Eq. 454; Clement v. Creveling, 83 N.J. Eq. 318 ."
See also Redmond v. Gummere, 94 N.J. Eq. 216.
That situation is presented by the case under consideration. The distribution of the remainder to Cornwell was postponed to a time subsequent to the death of the testatrix, only for the purpose of letting in the life estate and, of course, for the payment of the cash legacies. It is a typical example of a remainder after life estate subject to no uncertainty except the precise time of the certain termination of the life estate. Upon the death of the testatrix, Cornwell became immediately vested of the remainder. Redmond v. Gummere, supra.
The plaintiff, as substituted administrator with the will annexed of Grace M. Bierce, deceased, should pay the residue of the estate, after the payments of the four cash legacies, to the defendant, Margaret D. Cornwell, administratrix with the will annexed of the estate of Clark L. Cornwell, deceased. In re Collins, 99 N.J. Eq. 333 .
We have little to add to the opinion of Judge Grimshaw. Appellant counts on the rule that where there is no express gift of a legacy distinct from the direction for its payment, the legacy does not vest until the time for payment arrives. But Miss Bierce's will comes within an exception to the rule: Where the legacy is payable upon the termination of a prior life estate, and the legatee is a person living at testator's death, the legacy vests at testator's death. Redmond v. Gummere, 94 N.J. Eq. 216 ( E. A. 1922); Sadler v. Bergstrom, 113 N.J. Eq. 567 (Buchanan, V.C., 1933). Or, to use more general language, where the payment of the legacy in question is postponed only to let in some prior interest, the gift is vested. Howell v. Green, 31 N.J.L. 570 ( E. A. 1864).
The judgment is affirmed.