Opinion
Submitted February 12th, 1932.
Decided May 16th, 1932.
1. The intent of the testator, as gathered from the provisions of his will, should be given effect to the extent that such intent does not conflict with the rule against perpetuities.
2. Where a devise violates the rule against perpetuities, but is made as supporting life estates, or estates for years, which are concurrent or consecutive, the life estates or estates for years are not to be vitiated by the invalidity of the subsequent devise, unless it clearly appears that the prior created estates are elements or parts of the plan of ultimate devise.
3. Testator set up a succession of life estates, to his daughters, then to his sons, and finally to his grandchildren. Held, the devise was a unified scheme, intended to operate forever, and is therefore invalid as violative of the rule against perpetuities; and hence the testator died intestate as to his real property, which descends to his heirs-at-law as a consequence.
4. The devise must also fail for vagueness and uncertainty.
On appeal from a decree of the court of chancery advised by Vice-Chancellor Fielder, who filed the following opinion:
"Frederick Glock died seized of real property leaving a will admitted to probate by the surrogate of Hudson county, September 25th, 1894, by clause five of which he devised said real property. The bill here is filed for partition of said real property, the complainants being the widow and children of Francis Glock, a son of the testator, whose death occurred subsequent to his father's death. If the testamentary devise is valid, or partially valid, the complainants have no standing to file a bill.
"The clause is as follows:
"`Fifth. I give devise and bequeath unto my daughter Mary Elizabeth Glock during the term of her natural life or until she gets married all the rest residue and remainder of my estate whether real, personal or mixed and wherever situate she to pay all taxes, insurance and other municipal liens which may be levied against the same, make all necessary repairs and keep a home for the other children and in case she dies or should get married this bequest to be transferred to my daughter Annie, but with the same restrictions, and in the event of her decease or her getting married then this bequest to go to my next daughter and so on to the boys until all of my children are either dead or married and then to go to the oldest grandchild and so on.'
"The answering defendants admit that the ultimate intended disposition of the real property is invalid as offending the rule against perpetuities, but they insist that the life estates, or term of years, given to persons who were in being at the testator's death are valid and should be given effect.
"The testator's intent, so far as it can prevail against legal rules, must be the guide in construing a will and the intent of this testator, as gathered from the provisions of his will, should be given effect to the extent that such intent does not conflict with the perpetuity rule. Where a devise violates the rule but is made as supporting life estates, or estates for years, which are concurrent or consecutive, the life estates or estates for years are not to be vitiated by the invalidity of the subsequent devise, unless it clearly appears that the prior created estates are elements or parts of the plan of ultimate devise. Hewitt v. Green, 77 N.J. Eq. 345; Graves v. Graves, 94 N.J. Eq. 268; McGill v. Trust Company of New Jersey, 94 N.J. Eq. 657; affirmed, 96 N.J. Eq. 331.
"If the defendants' theory is correct, this court should hold as valid a life estate, in succession to such of the testator's daughters and sons as are qualified by the terms of the will and also a life estate to the testator's oldest grandchild, if there was a grandchild living at the testator's death, but it seems to me that such life estates form part of the plan which the testator apparently had in mind, which was to keep his real property in his family for the use of members thereof, forever. The life estates to his children and grandchild were not intended to be preferential to them, or independent or separate from his main purpose. The first life estate to a daughter was the starting point of his scheme and the life estates to follow thereafter were intended to continue the scheme in operation forever. I am of the opinion that the entire clause 5 is invalid as violative of the rule against perpetuities and that the testator died intestate as to his real property and that the same descended to his heirs-at-law, among whom are the complainants. There will be a decree for partition and, since the property is incapable of actual division, ordering sale.
"I suggest that the clause in question is also void for vagueness and uncertainty and I state some questions occurring to me, which I believe to be difficult, if not impossible of solution.
"The testator left him surviving three daughters, namely, Mary Elizabeth, who has since died; Annie, who is alive and unmarried, and Stella, who is living and married. Is Annie required to provide a home for Stella, as well as for her two brothers whom I shall mention hereafter? If Stella should survive Annie and be then a widow, did the testator intend that Stella should have a life estate?
"The testator also left him surviving five sons, namely, John, Thomas and Francis, who are now dead, and Fred and George, both of whom are living and unmarried. Upon the death of Annie, Stella being married and therefore disqualified from taking, which of the living sons shall succeed to a life estate and will the one who first succeeds be required to provide a home for his brother and for his sister Stella?
"The testator intended a life estate for his oldest grandchild after the death or marriage of all of testator's children. Did the testator intend to designate his oldest grandchild, whether male or female, married or single, and did he further intend that such grandchild should provide a home for testator's married living children and for all his other grandchildren?
"The bill of complaint contains a prayer that certain defendants account for rents and profits alleged to have been received by them from the real property in question and for the rental value of such portion thereof as has been in their possession. At the hearing no testimony was taken in connection with this prayer, it being understood that if it was determined that the complainants have an interest in the real property, it would be referred to a master to take testimony and report whether any defendant could be required to so account and if so to take, state and report an account."
Messrs. Schumann Schumann, for the appellants.
Messrs. Pesin Pesin, for the respondents.
The decree appealed from will be affirmed, for the reasons expressed in the opinion filed in the court below by Vice-Chancellor Fielder.
For affirmance — THE CHIEF-JUSTICE, TRENCHARD, PARKER, CAMPBELL, LLOYD, CASE, BODINE, DONGES, VAN BUSKIRK, KAYS, HETFIELD, DEAR, WELLS, KERNEY, JJ. 14.
For reversal — None.