Opinion
07-25-1906
VAN HOUTEN v. HALL et al.
Preston Stevenson, for complainant Robert Williams, for Catherine A. Peck. Griggs & Harding, for Abram Van Houten. Joseph P. Osborne, for M. H. Van Houten and others.
Bill by Rachel Van Houten against Joseph C. Hall and others for distribution of the residue of the estate of Rachel Van Houten deceased. Rights of the parties determined, and distribution advised.
The will of Rachel Van Houten contains the following devise: "I give the remaining one-third of the said residue to my grandson the said Adrian Post, and if he shall die leaving children, then to his children, but, if he shall die without issue, then I give the one-half thereof to Elizabeth Hall, and the other one-half to be equally divided between Caty, and if she be dead, her children, and the child or children of George in fee." The testatrix died in 1863, leaving two children, Catherine, called "Caty" in the will, and George, and two grandchildren, Adrian Post and Elizabeth, the children of her deceased son John. The estate was not to be divided until the death of George; the Income of one-third to be paid to him, of another third to Caty, and of the remaining third to Adrian Post, or to his children, if he should die before George, "but if he shall die without issue, then I give one-half of said income to the said Elizabeth Hall, and the other half to be divided equally between Caty and George." The will further provides that at the death of George, one-third of the estate should be paid to Catherine, another third to the child or children of George, and the remaining third was disposed of by the paragraph first above set out George died. in 1884, and the estate was then divided, one-third to Catherine, one-third to William H. Post, the only child of George, and one-third, being the fund now in controversy, was held for the benefit, during life, of Adrian; this court having determined that he took only a life estate. Post v. Van Houten, 41 N. J. Eq. 82, 3 Atl. 340. Catherine Van Houten died in 1897 leaving children; Rachel the complainant, John, Mary, and Aaron, and Henry, who died intestate unmarried, and without leaving issue, and one grandchild, Catherine Post Van Houten, a daughter of Catherine's son George, who died in 1903 intestate. Adrian died in November, 1905, without issue; William H. Post the only child of George the brother of Catherine, died before Adrian, leaving a last will in which he devised all his property to Catherine A. Peck. The question presented is, do the children of Catherine, and the devisee of William H. Post, take the one-half of the residue given over in the event of the death of Adrian without issue, as a class per capita, or is it to be distributed per stirpes?
Preston Stevenson, for complainant Robert Williams, for Catherine A. Peck. Griggs & Harding, for Abram Van Houten. Joseph P. Osborne, for M. H. Van Houten and others.
BERGEN, V. C. Assuming that the bequest to Caty and the children of George was to a class, and that Caty, if living, would have taken per capita with the children of George, I am nevertheless of the opinion that, under the language used, the children of Caty take as substitutes for their mother, and only such share as she would have taken if alive at the period of distribution. The gift was not to her and her children, consequently they formed no part of those first entitled; they could in no event participate with their mother, and could only acquire an interest should their mother die before distribution. The class of donees intended by the testatrix, If any, consisted of Caty and the children of George; they took a vested interest upon the death of the testatrix, subject to its being divested should the life tenant die leaving issue. The testatrix did not create a class which included Caty's children as original parties, for if the mother had been alive when Adrian died, she would have taken to the exclusion of her children.
The gift was not conjunctive, but disjunctive, not to Caty and her children, but to her, or her children if she was not alive when distribution was made. A gift to two or more persons, or their children, is substitutional, and the children take only their parent's share. Bartine v. Davis, GO N. J. Eq. 202, 46 Atl. 577. The trustees will be advised that the fund is to be distributed per stirpes between the children of Caty and the representative of the child of George. The fees of the trustees and other expenss incident to the distribution of the fund will be settled when the decree is handed up for advisement.