Opinion
07-25-1940
RUTHERFORD TRUST CO. v. STAGG et al.
Kipp, Ashen & Kipp, of Rutherford, for complainant. Guy W. Gordon, of Roselle, for and of counsel with defendant Cypress Hills Cemetery. J. Albert Homan, of Trenton, for and of counsel with Edward L. Whelan, clerk, guardian ad litem.
Syllabus by the Court.
1. In a suit to construe identical wills containing provision for the deaths in a joint disaster, held, the clause in question will be given effect as though the makers of the will had died at the same instant.
2. Provision for perpetual care of a cemetery plot will be given priority of payment over general legacies, when the estate is insufficient to make payment of both in full.
Suit by the Rutherford Trust Company, administrator with the will annexed of Minnie R. Corbett, deceased, and administrator with the will annexed of Florence E. Corbett, deceased, against Mary L. Stagg, Martha Hann, and others, to construe the two wills.
Wills construed.
Kipp, Ashen & Kipp, of Rutherford, for complainant.
Guy W. Gordon, of Roselle, for and of counsel with defendant Cypress Hills Cemetery.
J. Albert Homan, of Trenton, for and of counsel with Edward L. Whelan, clerk, guardian ad litem.
LEWIS, Vice Chancellor.
On October 16, 1936, twin sisters were found together in their home in Rutherford overcome by coal gas asphyxiation from which they both died; Minnie R. Corbett on October 26, 1936, and Florrence E. Corbett on November 1, 1936. Each of them left identical wills devising and bequeathing her entire estate to her sister, and containing the following clause: "In the event, however, of my said sister,? and myself, both dying, through accident, while we are together, then, and in such case, I do dispose of my said estate * * * and such real and personal estate as I may be entitled to through the decease of my said sister, as follows * * *."
Each will contained the following provision: "I give and bequeath unto Cypress Hills Cemetery the sum of two thousand dollars, for the purpose of the perpetual care of the family plot of my father and mother in said cemetery wherein I shall be buried."
The amount of the estates is insufficient to pay in full all the bequests made thereunder.
In this suit to construe the two wills, there are two questions before the Court. The first is as to whether the deaths of the two sisters under the circumstances thereof, constituted the event of both of them dying through accident while they were together. In such case, the contingent bequests enumerated in this clause of the wills would take effect. If the deaths of the sisters, however, were not through their both dying through accident while together, then the entire estate of Minnie R. Corbett would go to her sister, Florence E. Corbett, who survived her by several days, and Florence E. Corbett died intestate, since the bequest to her sister lapsed because of the prior death, and the contingent bequest never came into effect because of failure to meet the conditions. The other question is as to the right of the cemetery to receive its bequest in full in priority over other legatees. This question is raised only if it be held that the contingent clause, as to the joint deaths through accident, is effective.
The critical clause is "my sister, ——, and myself, both die, through accident, while we are together". Unquestionably, the two sisters died through accident, and this accident occurred while they were together, although they did not die at the same instant. The purpose of construction is, of course, to give effect to the intention of the testator so far as that intent may be determined from the will and be consistent with the language used.
In my opinion, the meaning to be given the language used is in accordance with the principles laid down in Hackensack Trust Company v. Hackensack Hospital Association, 120 N.J.Eq. 14, 183 A. 723. There, the contingency in the will was based upon a common disaster, and where one of the two involved died as a result of an automobile accident thirteen hours after the other. It was held that within the meaning of the clause, the effect would be as though both had died in the same instant. The court says, 120 N.J.Eq. page 19, 183 A. page 725: "It seems to me that the principles enunciated in Cowley v. Knapp apply in the instant suit. The mother, of course, wished her daughter to benefit by the residuary clause in her will, but there was no reason, if the daughter should not be able to enjoy the mother's estate, why the power of disposition of the residue should then be taken away from the mother and given to the daughter to dispose of not in accordance with the mother's wishes but in accordance with those of the daughter. I therefore find that it was not the intent of the testatrix to vest the residue in the daughter under the facts shown." In the wills now before the Court, each sister first left her estate to the otherwith the obvious intention that the survivor should get the benefit thereof. The further provision for bequests elsewhere were to come into effect only where both died through accident, and it seems apparent to me that the intention was that these contingent bequests were to take effect in case the other sister could not receive the benefit thereof. They both died from the same accident, and I consider it would require a strained construction of the clause to limit it to a case where they both died at the same time and the same place. I accordingly construe the will to mean that Florence E. Corbett did not inherit from her sister, and that the contingent clause in both wills is effective.
Under this construction, it is necessary to pass on the priority of the bequest to the cemetery, since the two estates are not sufficient to pay all the bequests in full. Perpetual care in a reasonable amount is deductible from inheritance taxes as a part of proper funeral expenses, Gilchrist's Estate, 110 N. J.Eq. 666, 128 A. 876. Another reason for granting priority is that the legacy to the cemetery is not a mere gratuity as are the other legacies, but is based upon a meritorious consideration, namely, the care of the cemetery plot. I accordingly find that the bequest of the cemetery has priority. It will be noted that each of the two wills makes an identical bequest to the cemetery, in the same amount. If both these bequests are given effect, the payment to the cemetery will amount to $4,000. Whether such was the intention of the two sisters may well be doubted. Under the construction given the will, since the contingent bequests are identical, the effect is that of a merger of the two estates. It is not necessary to decide whether there shall be two bequests to the cemetery or only one, since the cemetery has waived any right to more than $2,000 on the two estates together.
I accordingly find the cemetery is entitled to priority of payment in the amount of $2,000, and that the rest of the estates are to be distributed pro rata among the legatees named in the contingent clauses, who survived the two sisters; two of the legacies having lapsed by prior deaths of the legatees.