KING v. KING, 125 N.J. Eq. 94 (1939)

4 A.2d 405

LILLIE O. KING et al., complainants-appellants, v. LAURA V. KING and GIRARD TRUST COMPANY, executor of the last will and testament of BERTHA B. KING, deceased, defendants-respondents.

Court of Errors and Appeals.Submitted October 18th, 1938.
Decided February 6th, 1939.

Testatrix devised and bequeathed the residue of her estate to her husband, his heirs, executors, administrators and assigns, absolutely and forever. No children were born of the marriage Held, the words used in the residuary clause of the will are words of limitation and not of substitution, and upon the husband predeceasing his wife, there was a lapse so far as the distribution of her residuary estate was concerned, so that she died intestate as to that estate and the same descended to testatrix’ sister, her only next of kin and heir-at-law.

On appeal from the court of chancery.

Messrs. Bleakly, Stockwell Burling and Mr. Andrew R. McCown (of the Philadelphia bar), (Mr. Henry F. Stockwell, of counsel), for the appellants.

Messrs. Curry Purnell (Mr. Edward T. Curry, of counsel), for the defendant Laura V. King.

Messrs. Boyle Archer, for the defendant Girard Trust Co.,c.

PER CURIAM.

This is an appeal from a decree in chancery construing the last will and testament of Bertha B. King, deceased.

Testatrix, in the third paragraph of her will, provided that:

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“All the rest, residue and remainder of my estate of whatsoever kind, whether real, personal, or mixed, and wheresoever situate, and whether now owned or hereafter acquired by me, I give, devise, bequeath, limit, and appoint absolutely unto my beloved husband, Albert S. King, and unto the heirs, executors, administrators and assigns forever of my said husband.”

Albert S. King predeceased his wife, Bertha B. King. No children were born of this marriage. The contest is between Laura V. King, a sister of Bertha B. King, deceased, but who was in nowise related to the husband of Bertha B. King, or his family, and the heirs of the husband of Bertha B. King.

The court below concluded that the words used in the cited paragraph of the will were words of limitation and not of substitution and that upon Albert S. King predeceasing his wife, Bertha B. King, there was a lapse so far as the distribution of the residuary estate of Bertha B. King was concerned and that upon this lapse Bertha B. King died intestate as to that estate and the same descends to Laura V. King, her only next of kin and heir-at-law.

We have carefully considered the record and briefs submitted and are of the opinion that the conclusions of the learned vice-chancellor are correct.

The decree appealed from is affirmed.

For affirmance — THE CHIEF-JUSTICE, TRENCHARD, PARKER, CASE, BODINE, DONGES, HEHER, PERSKIE, PORTER, HETFIELD, DEAR, WELLS, WOLFSKEIL, RAFFERTY, WALKER, JJ. 15.

For reversal — None.

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