Opinion
No. 51/304.
10-24-1922
GANNON v. LENZI et al.
Autenrieth & Gannon of Jersey City, for complainant. Mark A. Sullivan, of Jersey City, and J. Victor D'Aloia, of Newark, for defendants.
In the matter of the estate of Mary C. McBride, deceased. Bill for construction of will by James F. Gannon, Sr. trustee under the will, against Maud Reilly Lenzi and others. Will construed. Decree advised.
Autenrieth & Gannon of Jersey City, for complainant.
Mark A. Sullivan, of Jersey City, and J. Victor D'Aloia, of Newark, for defendants.
CHURCH, V. C. This is an action for the construction of the seventh clause of the last will and testament of Mary C. McBride, which reads as follows:
"To pay to my niece Maude Reilly McElkenny for and during the term of her natural life the net income from premises No. 325 Grove street, Jersey City, New Jersey, for her sole and separate use. If the said Maude Reilly McElkenny should die before her son, Matthew Lansing Reilly, reaches the age of twenty-one years, then I direct my executor and trustee to pay the net income of said property and all accumulations thereof to the said Matthew Lansing Reilly or his duly appointed guardian for his proper education and maintenance until he reaches the age of twenty-one years, and if the said Matthew Lansing Reilly lives to be twenty-one years of age then I direct my executor and trustee to make a good and proper conveyance of said property to him; it is my intention by the foregoing to make the right of Matthew Lansing Reilly to the title in fee of the said premises contingent upon his attaining his majority. No right to receive the title of the said premises shall vest in him unless he does so attain his majority. Should Matthew Lansing Reilly not live to be twenty-one years of age, then said premises with all accumulated income therefrom after the natural death of said Maud Reilly McElkenny shall revert to and become part of my residuary estate. It is my will that my trustee handle and manage this property as if it were his own, and after deducting from the gross income what is necessary for its proper preservation, maintenance or improvement to pay over to the parties above named, the net income as above provided and in amounts and manner as he deems best."
The complainant, the trustee under the will of Mary C. McBride, asks the court to construe the section above quoted to determine whether or not the title has now vested absolutely in Matthew, to the extent of cutting off his mother's life estate, or whether the mother continues in the enjoyment of the rents and profits during her lifetime. It is admitted that Matthew is now 21 years old.
It is argued that, if the court should find that the life interest of the mother continues, Matthew will have no interest whatever, and as to this particular piece of property, at the death of the mother, an intestacy will arise, which the law abhors. In other words, either Matthew takes everthing now, to the exclusion of his mother's life estate, or nothing at all at any time. I do not think thatit is necessary to find this, under the wording of the will. The clause says that, "if Matthew lives to be twenty-one years old the executor shall make a good and proper conveyance of the property to him," and goes on to explain that "it is my intention to make the right of Matthew to the title in fee contingent on his attaining his majority. No right to receive the title shall vest in him unless he does so attain his majority." It is very clear to my mind that when Matthew reached the age of 21 years he became vested with the title in fee to this property, and the executor and trustee should make proper conveyance to him. The first sentance of the clause is in no way inconsistent with this. Matthew can take the title in fee, subject, however, to his mother's right to the rents and profits during her natural life. The life tenant, of course, must maintain the property and pay the taxes. My opinion, therefore, is that Matthew has a fee in this property, subject to the right of his mother during the term of her natural life to the income.
If counsel will prepare a decree in accordance with these conclusions, I will advise it.