Ballentine v. De Camp. The trust was to end on the death of all of his children, and the estate to go to the "right heirs" of his children in fee as tenants in common; the child or children of any deceased child to take the part or share of the trust estate that the parent would have taken had the testator died intestate. The testator's wife died in his lifetime. His children all survived him. They were William N., Sarah Ann, Jane Elizabeth, Theodore T., and Laura Louisa. The last-named afterwards married John De Camp and died in April, 1884, leaving surviving her two children, Maria M. and Edward W., and four grandchildren, the children of a deceased son, James W., who died in 1882, in her lifetime. At Mrs. De Camp's death, Sarah Ann Wood, one of the testator's daughters, had died childless. The two sons, William N. Wood and Theodore T. Wood, had also died, each leaving children. Jane Elizabeth Wood alone, of the testator's children, survived Mrs. De Camp, and she is still living. The question presented is, whether Mrs. De Camp's children and her grandchildren take her share per capita, or whether the grandchildren take only the share of their deceased father-that is, whether the grandchildren together take one-third of her share (each one-twelfth), or are each entitled to one-sixth. Whether the provision in regard to death without lawful issue in the clause under consideration is to be construed as meaning death in the lifetime of the testator or not, the decision of the question will be the same. For if it is to be so construed, the interest of Mrs. De Camp was a vested one at the testator's death, and at her death that interest went to her surviving children and her grandchildren, the children of her deceased son, whose interests therein are fixed by the statute of distributions. Mrs. De Camp appears to have been a widow at the time of her death. Under that statute, her two surviving children would each be entitled to one-third, and the four grandchildren (taking together what would have been their father's share) each to one-twelfth. If the provision be construed (as I think it should be) to mean death either before or after the testator's death, the grandchildren are entitled to take as issue, but only per stirpes. The gift to the testator's children is for life Ballentine v. De Camp. only, and at the death of any of them the issue of the decedent is to take his or her share. The language of the will is: "In case of the death of any of my said children, leaving lawful issue, then to pay over his or her share to and among said issue, in equal parts or shares." Mrs. De Camp's share was, under that provision, to go, upon her death, to and among her issue. Our statute of descents provides that under a devise to one for life, and at his death to his heirs, heirs of his body or issue, the property devised shall go to the children of the life-tenant in fee, and if any child be dead, his or her issue is to take the part which would have come to him or her if living. Rev. p. 299 § 10. The will shows that the testator intended that his children's children should take the share of their parents in the places of the latter. In providing for the division of the trust property under the trust now under consideration, at the death of his last surviving child, he directs that the property go to their respective right heirs in fee simple, to hold as tenants in common and not as joint tenants, and adds: "It being always understood that the child or children of any of my deceased children shall take the part or share of the said trust estate that the parent would have taken had I died intestate." And again: "The child or children of each deceased child taking the part or share which the parent would be entitled to." In the gift of the residue in the last codicil similar language is employed. By the term "issue" he meant children. The gift of the share of rents was to Mrs. De Camp for life, and if she should die before the end of the trust it was to go to her children. Her deceased son's share of it went to his children. It has been often held that the distribution under such a provision as that under consideration is stirpital. Orton's Trust, L. R. (3 Eq.) 375; Bryden v. Willett, L. R. (7 Eq.) 472; Ross v. Ross, 20 Beav. 645; Robinson v. Sykes, 23 Beav. 40. There will be a decree in accordance with these views. Matthews v. Dellicker. CHARLES B. MATTHEWS et al. υ. WILLIAM DELLICKER et al. The income of a testamentary trust fund was given to a testator's wife for her life or widowhood, for the maintenance of herself and children, with a provision, among others, that if the children should be of age at the time of their mother's death or remarriage, the principal of the fund should be equally divided among them. They are now all of age, and their mother survives, unmarried.--Held, that, upon the application of the mother and children, the moneys derived from the condemnation of part of the lands covered by the trust for the purposes of a railroad company, could be devoted to erecting a building on another part of the lands covered by the trust, the present buildings whereon are very dilapidated. Bill for relief. On final hearing on pleading and proofs. Mr. F. Adams, for complainants. Mr. C. Borcherling, Jr., for executors. Mr. R. Wayne Parker, for receiver. THE CHANCELLOR. Patrick Matthews, late of Morris county, died October 21st, 1866. By his will, he gave the residue of his estate, real, personal and mixed, to his executors, their heirs, executors, administrators and assigns forever, in trust, nevertheless, to collect and receive the rents, profits, interest and income thereof and to pay them to his wife for the support of herself and his children by her for and during her natural life, in case she should so long continue to be his widow, and on her death or remarriage, to pay them, in equal shares, to those children until the youngest of them who might survive should arrive at the age of twentyone years; and when the youngest of them should have attained to that age, then, after the death or remarriage of his wife, to Matthews v. Dellicker. assign, transfer and pay over to those children all his estate, in equal shares; and in case of the death of either or any of them before the youngest should have attained to majority, leaving issue, then, after the death or remarriage of his wife, to pay over, assign and transfer the share or shares of such child or children to his, her or their lawful issue; and in case of the death of any of the children before the youngest should arrive at the age of twenty-one years, without lawful issue, then, upon the death or remarriage of his wife, to assign, transfer and pay over the share or shares of such child or children to the survivor or survivors of such children. Part of the real estate which constituted part of the residue, was taken in 1869, by condemnation, for the use of the Newark and New York Railroad Company, under the charter of that corporation, and the money ($12,415) awarded for the value of the land was, after deducting certain costs and fees, ordered by the court of common pleas of Essex county, March 28th, 1870, to be deposited with the Newark Savings Institution in the name of the estate, subject to the order of that court, the interest to be payable to the executors for the use and benefit of the widow and minor children, according to the will, but the principal to remain on deposit there until the further order of that court. The amount so deposited was $12,377.42. The interest thereon was paid over to the executors up to the time of the suspension of the savings institution in 1877. By order of this court of June 29th, 1878, it was ordered that the dividends of principal of the deposit paid by the institution on account thereof be deposited on what was called "new account" in the institution, the interest thereon, after such deposit, to be paid to the executors. The savings institution again, in May, 1884, suspended payment, and was declared insolvent on proceedings in this court, and a receiver appointed. The institution had paid to the new account ninety-five per cent. of the principal of the original deposit. On the new account two dividends, amounting together to seventy-five per cent., have been ordered, which remain in the hands of the receiver. The bill is filed by the widow and the children of the testator, the beneficiaries named in the residuary clause, against the execu Matthews v. Dellicker. tors and the receiver, and its object is to dispose of the fund. It prays that this court will direct that the fund be paid over to the executors, or be paid into and kept in this court for the benefit of the complainants, so invested as to produce interest, to be paid over to the widow, or that the corpus be paid over to her and them, in equitable proportions, or that this court will give aid and direction to the executors in respect to the trust; and there is also the prayer for relief, generally. The children of the testator by his last wife are all of full age. It appears by the testimony that they and the widow all desire that the fund in question-the money in the savings institution -be used to build a house upon a lot which is part of the residuary estate, and is situate on the corner of Union and Ferry streets, in the city of Newark. The building now upon that lot is old and in a dilapidated condition, and produces but little rent; it is not worth repairing, and, of course, is not desirable either for residence or business purposes. The lot is in a good location, and is such as to warrant the erection thereon of a substantial brick building, to be used for residence and as a place of business. The property, in its present condition, produces but little, if any, more rent than will pay the taxes and insurance. The residuary estate does not produce enough income to support the widow. The interest of the children in the residuary estate is a vested remainder. The interest of the widow is the use of the estate during widowhood. At her death or remarriage, if the youngest child shall then have attained to majority, the corpus is divisible, in equal shares, among the children. The youngest child is over twenty-one years of age. There is a provision in the will that in case of the death of any of the children before the youngest shall have attained to majority, leaving issue, his, her or their share shall, in the division, go to his, her or their issue, and that in case of the death of any of the children before the youngest shall have arrived at the age of twenty-one years, without lawful issue, then, in the division, the share or shares of such child or children so dying without issue shall go to the survivors or survivor. But the event of death before the youngest |