Opinion
Argued May 25th, 1943.
Decided September 24th, 1943.
1. It is settled that in construing a will, the word "and" will be construed as "or" only to effect the evident intention of the testator. It is also settled that effect should be given to every clause in the will, if possible.
2. There is no sufficient basis for changing "and" to "or" in determining what savings accounts were the subject of the testamentary provision here under consideration.
3. The phrase in the will describing the bank accounts bequeathed to appellant as those "still * * * in the name of the estate of William Hoffmann, Sr.," testator's father, identified the thing given and relates to the date of the will, and not to the death of the testator.
4. Conflicting claims are made to the residue of the estate, undisposed of under the will, by testator's sister (the appellant) and by the respondent who claims she is his widow. Appellant asserts that respondent had another husband living at the time of her marriage to testator, and hence her marriage to him was void. Held, the presumption in favor of respondent's marriage to testator can be overcome only by convincing proof that the alleged former marriage was valid, and that the first husband had not obtained a divorce, but was still alive when appellant remarried. That presumption has not been overcome.
5. Testator transferred funds from an account standing in the name of his father's estate, of which he was a co-executor, to his own account in the same bank. Held, withdrawals by the testator should be charged against the two funds proportionately, in determining what part of the money in testator's accounts passed to his sister, the appellant, at his death under his will. Similar percentages should be applied to that part of the withdrawals subsequently redeposited by testator.
6. Parties cannot by consent give a court jurisdiction of the subject-matter which the court did not have without such consent.
7. The probating of the will brought the issue in the litigated case within the jurisdiction of Chancery to construe wills.
On appeal from a decree in Chancery advised by Vice-Chancellor Bigelow, who filed the following opinion:
"The problem is the succession to the estate of William F. Hoffmann, Jr., late of Newark, who died July 30th, 1942. By the second paragraph of his will he gave to his sister Elizabeth, now Mrs. Jinks, `all money on deposit in banks which was and still is in the name of the estate of William Hoffmann, Sr., and which came to me from the estate of my father, the late William Hoffmann, Sr., deceased.' There were four savings accounts which had been opened by William Hoffmann, Sr., in his lifetime and the title of which, prior to the date of the will had been changed to read as follows:
"U.S. Savings Bank: `William Hoffmann, Jr., Elizabeth Hoffmann, Exrs. of Est. of William Hoffmann, deceased,' $5,008.23.
"Howard Savings Institution: `William Hoffmann and Elizabeth Hoffmann Executors,' $10,313.03.
"Lincoln National Bank: `William Fred Betty R. Hoffmann,' $4,114.21.
"Lincoln National Bank: same names, $4,392.75.
"Betty R. Hoffmann is Mrs. Jinks; William Fred was our testator. The same day that Hoffmann made his will, his sister made hers, in his favor, in identical terms. Also each executed to the two of them as executors of their father's will, a general release `especially in full satisfaction of my interest and distributive share in the estate of William Hoffmann, Sr., deceased.' Both parties at the time intended to marry and both did marry within a few weeks thereafter.
"The second paragraph of the will is susceptible to two interpretations. By one, which is perhaps literal, only those moneys are given which had both characteristics: They stood in the names of the estate of testator's father at the date of the will and they came to testator from his father's estate. If that is the true meaning, only the two accounts standing in the name of the executors were the subject of the gift. By the other construction, those moneys are given which either stood in the name of the estate, or which came from the estate. The word `and' connecting the clauses is transformed into `or,' and the two accounts in the names of William, Jr., and his sister are included in the legacy. It is settled that the word `and' will be construed as `or' only to effect the evident intention of testator. Ely v. Ely's Ex'rs., 20 N.J. Eq. 43; Courter v. Stagg, 27 N.J. Eq. 305; Elizabeth Trust Co. v. Clark, 96 N.J. Eq. 550. But it is also settled that effect should be given if possible to every clause in the will. If testator intended to give only the money standing in the name of the estate the added clause `which came to me from the estate of my father' seems superfluous. Indeed it may be argued that the two clauses are repugnant in some degree, for `money on deposit in banks * * * which came to me from the estate of my father' is not an apt description of testator's interest in funds which had not yet come to him as an individual, but were still held by the executors as an undistributed part of his father's estate, while it is a correct description of testator's share of the fund to the credit of himself and his sister. But the releases given on the date of the wills show that they considered that the money on deposit in their names as executors belonged to them individually — that it was part of their shares in their father's estate. I conclude that there is no sufficient basis for changing `and' to `or,' and that only the two executors' accounts were the subject of the second paragraph.
"The accounts were closed out six months after the date of the will and the money divided between the brother and sister. At the death of the testator there was no money on deposit in the name of the estate, or of the executors of the will of the senior Hoffmann. Counsel presented no evidence of what became of testator's share of these funds.
"The legacy is specific — the gift of a particular fund. Norris v. Thomson's Ex'rs., 16 N.J. Eq. 218; Kearns v. Kearns, 77 N.J. Eq. 453. The proofs do not show whether it has been adeemed. The phrase in the will `still in the name of the estate of William Hoffmann, Sr.,' was used by testator to identify the thing given; it relates to the date of the will, not to the death of testator. Prendergast v. Walsh, 58 N.J. Eq. 149. If testator redeposited the money and at his death it answered the description, money on deposit in banks which at the date of the will was in the name of his father's estate — or of the executors — and which came from the estate of testator's father, then it passed to his sister under paragraph two of his will. But if he left no bank accounts of that character, then his sister takes nothing under this paragraph.
"The residue of the estate, since the will does not dispose of it, passes to the heirs and next of kin. Conflicting claims are made by testator's sister and by complainant who alleges she is his widow. He married her May 8th, 1941, and they lived as man and wife until his death. Mrs. Jinks asserts that complainant had another husband living at the time of her marriage to testator and hence her marriage to testator was void.
"Complainant on July 28th, 1920, married one John M. Smith at St. Patrick's Cathedral, Newark. She testified that this marriage was `not lawful,' because Smith pretended to be, but was not, a Catholic, as she later found out. Smith deserted her a couple of weeks after the wedding. She never instituted an annulment or divorce proceedings, and knows of none brought by Smith.
"Although the evidence is conflicting I find that Smith was alive in 1930, eleven years before complainant's marriage to testator. A certain Mrs. Trapper testified that on one occasion in 1940 she met Smith and talked with him and that in the fall of 1942 while riding in a bus she saw him as he walked along the sidewalk. But the witness said she had very strong feeling against complainant — that complainant had broken up her home. Mrs. Trapper's evidence must be received with great caution.
"The presumption in favor of complainant's marriage to testator is great. It can be overcome only by convincing proof that the marriage to Smith was valid, that he had not obtained a divorce and that he was still alive May 8th, 1941. Sparks v. Ross, 72 N.J. Eq. 762; 75 Id. 550; Hefele v. Hefele, 110 N.J. Eq. 457; Schuler v. Schuler, 114 N.J. Eq. 220. The presumption has not been overcome. Complainant will be entitled to the residue of the estate, when the time for distribution arrives, unless meanwhile new evidence be uncovered.
"Counsel have now submitted the bank records and have asked me to determine what part of the moneys in testator's accounts at his death, passed to Mrs. Jinks under the second paragraph of the will. On October 6th, 1941, the two accounts of their father's estate were divided between testator and his sister. From the Howard Savings account, $2,281.98 was transferred to an account in the same bank in which testator already had $4,927.73. No further deposits in that account were made, but interest of $60.57 was credited and $1,515 was withdrawn. I know of no presumption that the withdrawals were taken from one of the funds rather than the other and conclude they should be charged against the two funds proportionately. It was within testator's intention that interest credited should go with the principal. The result is: Upon the transfer of the money 31.65 per cent. of the account came from the old estate account. Applying the same percentage at testator's death, we find that $1,817.08 is part of Mrs. Jinks' legacy.
"The transactions relating to the United States Savings account were of the same nature, and in the same way we determine that $1,943.73 of testator's account in that bank is part of the legacy.
"Among the withdrawals from the two accounts in testator's name, was $845 which was redeposited to his credit in the Franklin Savings Institution. Applying the percentages above mentioned it appears that $287.75 of this transfer, with interest of $2.50 thereafter credited, goes to Mrs. Jinks."
Mr. Charles M. Grosman, for the complainant-respondent.
Mr. Harold Simandl, Mr. Harry Schaffer and Mr. Nicholas W. Kaiser, for the defendant-appellant.
The decree under review will be affirmed, for the reasons expressed in the opinion of Vice-Chancellor Bigelow supplemented, however, as follows:
Appellant now for the first time contends that Chancery had no jurisdiction to entertain the proceeding for the reason that when the bill was filed the will had not been probated. The bill of complaint was filed August 14th, 1942; the answer, September 3d 1942; the replication, September 4th, 1942. The will was probated October 14th, 1942. The cause came on for hearing on December 14th, 1942; and still later, according to the Vice-Chancellor's conclusions, counsel appeared and submitted additional proofs upon which findings were requested. Appellant concedes that the events moved in that fashion but seeks to support her present objection upon the proposition that acquiescence of parties does not serve to confer jurisdiction over the subject-matter.
The rule is that parties cannot, by consent, give a court jurisdiction of the subject-matter which the court did not have without such consent. 7 R.C.L. 1039; State v. Baker, 102 N.J. Law 349. The phrase "jurisdiction of the subject-matter" may relate to the particular case at the time receiving the attention of the court or it may mean jurisdiction over the class of cases to which the particular case belongs. It is not, and may not be, said that Chancery does not have jurisdiction to construe wills. In that sense the court had jurisdiction over the subject-matter. What the appellant here questions is the authority of the court to construe as a will that which was not probated and therefore was not in the technical sense a will at the time of the filing of the bill. Had the appellant, then the defendant, moved, in Chancery, to attack the sufficiency of the bill in point of jurisdiction, procedure under the bill would doubtless have been interrupted. Whether the bill would properly have been dismissed, without prejudice to the filing of a new bill when the event of probate had occurred ( Cf. Armstrong v. Lear, Administrator, 12 Wheat. 169; 6 Law Ed. 589) or merely held in abeyance subject to amendment, need not now be considered. The defendant as the custodian of the paper, the person named therein as executrix and the sole beneficiary thereunder, was concededly about to seek probate. Complainant was led to her hasty and premature filing of the bill by the specific statement of intention made in writing on August 13th, 1942, on behalf of the defendant that the latter would claim entitlement to all moneys of her brother's estate which had come to him from the father and by the apprehension that the defendant, once in control of those moneys, would dissipate them. The defendant did presently offer the paper for probate, and probate was, as stated above, effected two months before the hearing on the bill. That which the court considered and construed was in fact a duly probated will. Timely objection to the bill upon the named ground, whatever the immediate disposition might have been, would not have affected the complainant's right to come back for a construction when the paper had actually been probated and occasion for construction existed. The defendant answered without moving to strike. The cause came on without objection for trial upon the merits. Trial was had and several weeks later the decision was filed. In our opinion the probating of the will brought the issue in the litigated case within the jurisdiction of Chancery to construe wills. See the discussion and citations in Pelletreau v. Rathbone, 1 N.J. Eq. 331 (at pp. 334 and 335).
The decree below will be affirmed.
For affirmance — THE CHIEF-JUSTICE, PARKER, CASE, BODINE, DONGES, HEHER, PERSKIE, PORTER, COLIE, DEAR, WELLS, RAFFERTY, HAGUE, JJ. 13.
For reversal — None.