
    In the matter of the estate of Antonio Cella, deceased.
    [Decided June 9th, 1931.]
    
      Mr. Wilfred B. Wolcott, for Lizzie Loftus and Eose Cella Tucci, appellants.
    
      Messrs. Boyle & Archer, for Mary Cella MacIntyre and Catherine Cella.
    
      Messrs. Gorson & Gorson, for Girard Trust Company and Florence M. Eiddle, executors and trustees.
    
      Mr. Vincent 8. Ilanemcm, for PI. G. Harris, administrator, and Frances Cella, appellees.
   Ingersoll, Vice-Ordinary.

On the 25th day of August, 1930, the orphans court of Atlantic county made an order as follows:

“Atlantic County Orphans Court.

“In the matter of the estate of Antonio Cella, deceased.

On petition, &c. Order directing distribution.

“The Girard Trust Company and Florence M. Eiddle, who were executors and trustees under the last will and testament of Antonio Celia, deceased, having filed their ■petition setting forth, among other things, that their account as trustees was allowed by this court by a decree dated March 12th, 1930, showing that the sum of $100,392.77 of the corpus and of $1,956.56, as income, are, under the terms of said will distributable by them to the persons hereinafter named, and praying a decree for the distribution thereof in accordance with the terms of said will, and it satisfactorily appearing that the notice for the application for such decree of distribution prescribed by the rules of this court has been given and that the said petitioners are entitled to the relief sought, in and by their said petition, and it further appearing that the ■ said testator in and by subdivision A and B of paragraph 2 of his said will, directed his executors and trustees to pay unto his sister, Jennie Celia, the sum of fifty dollars ($50) per month during her lifetime, and to pay unto Joseph Badaracco the sum of forty dollars ($40) per month during his lifetime, and by a codicil to his said last will and testament, directing.that a sum sufficient, when invested, to produce the sum of thirty dollars ($30) per month, be paid to Mary Barry on the first day of each and every month during her lifetime; that the said Jennie Celia, Joseph Badaracco and Mary Barry are all living; that the said testator provided for clothing, educating and maintaining his adopted son, Antonio Bobert Celia, until he reached the age of twenty-five (25) years, and in the event of the death of said Antonio Eobert Celia, prior to attaining the age of twenty-five (25) years, that then, subject to the provisions for the said Jennie Celia and Joseph Badaracco, as mentioned in said paragraph 2, subdivision A and B of said will, the estate of said testator should be divided as follows:

“ ‘Paragraph 3—(a) One-half to be divided among the children of Mr. and Mrs. William Biddle, share and share alike; who are then living.

“ ‘(b) One-quarter to go to Jennie Celia, my sister, if living, and if dead, this one-quarter interest to go to her children, share and share alike, who are living at the time.

“ ‘(e) And the other one-quarter interest to go to Joseph Celia, nephew; John Celia, nephew; Mamie Valloni, niece; Lizzie Lofiand, niece, and Rose Celia (now married, husband’s name unknown), niece, if they be living, share and share alike.’

“The said Antonio Robert Celia died August 11th, 1929, before attaining the age of twenty-five (25) years; that on August 11th, 1929, the date of the death of said Antonio Robert Celia, the children of Mr. and Mrs. William Riddle, referred to in paragraph 3, subdivision A of the will of said testator, who were then living, and in whom said gift vested, were Hugh Riddle, Donald Riddle, Bruce Riddle and Graeme Riddle; and the said Donald Riddle had theretofore, by writing bearing date October 5th, 1929, assigned all his right, title and interest under said last will and testament to Hope-share Investment Company, a corporation of the State of New Jersey; that on August 11th, 1929, the date of the death of said Antonio Robert Celia, of the persons named in paragraph 3, subsection C of said last will and testament, Lizzie Lofiand (Loftus) and Rose Celia (Tucci) alone survived, and were living; that said Joseph Celia died on June 16th, 1929, leaving him surviving two (2) children, Mary Celia MacIntyre and Catherine Celia, a minor, and leaving a last will and testament, and appointing executor théreof one Ralph MacIntyre, who was also thereby named and appointed testamentary guardian of said minor; that said John Celia died intestate on February 26th, 1922, without issue him surviving, but leaving a wife, Winfred Brady Celia; that said Mamie Valloni died on August 7th, 1921, intestate, without issue her surviving, leaving a husband, Harry Valloni; that the administrator of the estate of Antonio Robert Celia, deceased, claims to be entitled under the statute of distribution of this state, as next of kin, both as the adopted child and as grandson of the said testator, to the parts or shares directed by subdivision C of paragraph 3 aforesaid, of said will, to be disposed of to Joseph Celia, John Celia and Mamie Valloni out of said one-quarter interest, insisting that said shares so given lapsed upon the death of said Joseph Celia, nephew; John Celia, nephew, and Mamie Valloni, niece, and never Vested in said nephews and nieces because of their death' prior to the death of said Antonio Robert Celia before he attained the age of twenty-five (25) years; that the said Lizzie Lofland (Loftus) niece, and the said Rose Celia (Tucci), niece, likewise insist that they are entitled to the whole of said one-quartor interest in equal shares because as they contend by the true construction of the will of said testator, neither the said Antonio Robert Celia in his lifetime had, nor since his demise has his administrator had any estate right or interest under the terms of said will in or to the estate of said testator or in any part thereof, and that by an order of this court made on August 5th, 1930, in the above-entitled matter, the said Girard Trust Company and Florence M. Riddle, trustees as aforesaid, under said will were ordered and directed to pay over to Howard G. Harris, administrator of the estate of Antonio Robert Celia, deceased, and Frances H. Celia, widow of said Antonio Robert Celia, the net rents, issues and profits received by them from the land and premises known as 2020 Atlantic avenue, Atlantic City, New Jersey, prior to any distribution of the assets of the estate of said Antonio Celia, deceased, and the court having examined the record of said will on file and heard and considered the arguments of Morris M. Gorson, appearing for Gorson & Gorson, proctors for the petitioners; Wilfred B. Wolcott, proctor for Lizzie Lofland (Loftus) and Rose Celia (Tucci); Vincent S. Haneman, proctor for Howard G. Harris, administrator of the estate of Antonio Robert Celia and Frances H. Celia, and Boyle & Archer, proctors of Marie Celia MacIntyre and Catherine Celia, and especially as to what sums should be invested or what securities should be set apart to provide the amount of money required and directed by the terms of said will and codicil, to be paid monthly to the said Jennie Celia, Joseph Badaracco and Mary Barry, before making distribution of the residue of said estate to and among the persons who may be entitled thereto, in accordance with the directions and provisions of said will and testament and codicil aforesaid of the said Antonio Celia, deceased;

“It is, thereupon, on this twenty-fifth day of August, 1930, ordered, adjudged and decreed that Girard Trust Company and Florence M. Eiddle, trustees under the said last will and testament of Antonio Celia, deceased, first distribute and pay from said balance in their hands to Howard G. Harris, administrator of the estate of Antonio Eobert Celia, deceased, the whole net rents, issues, profits and income received by them from the premises known as No. 2020 Atlantic avenue, Atlantic City, New Jersey, between August 22d,' 1919, and August 11th, 1929, and that they distribute and pay unto Frances IT. Celia, widow, the net rents, issues, profits and income of said property received by them from August 11th, 1929, the date of the death of said Antonio Eobert Celia to the date of this decree, in accordance with the order of this court made on the fifth day of August, 1930, before making any other distribution of said balance.

“It is further hereby ordered, adjudged and decreed that the said trustees, Girard Trust Company and Florence M. Eiddle, after making the payment and distribution aforesaid, set aside from the trust fund held by them, Liberty Bonds of the United States to the amount of forty thousand dollars ($40,000), par value, and cash to the amount of ten thousand dollars ($10,000), and from the income thereof, they pay to Jennie Celia the sum of fifty dollars ($50) monthly, during the term of her natural life; that they pay to Joseph Badaracco, monthly, the sum of forty dollars ($40) during the term of his natural life; and that they pay to Mary Barry, monthly, the sum of thirty dollars ($30) during the term of her natural life; that the residue of said estate, after setting aside the assets and fund aforesaid for the purposes aforesaid, the said trustees pay and distribute as follows: One equal one-eighth part thereof to Hugh Eiddle; one other equal one-eighth part thereof to Hopeshare Investment Company, a corporation of the State of New Jersey; one other equal one-eighth part thereof to Brude Eiddle; one other equal one-eighth part thereof to Graeme Eiddle; one-quarter of said residue to Jennie Celia; one equal twentieth part thereof to Lizzie Loñand (Loftus); one equal twentieth part thereof to Eose Celia (Tucci); three equal one-twentieths parts thereof, so far as the same consists of personal property, to Howard G. Harris, administrator of the estate of Antonio Eobert Celia, deceased, and insofar as the same consists of real property, to the said Frances H. Celia, widow of Antonio Eobert Celia, deceased.

“It is further ordered, adjudged and decreed, that a counsel fee of two thousand 00/100-dollars be allowed to Gorson & Gorson, proctors for the estate of Antonio Celia, deceased.

Wm. H. Smathers,

Judge.”

This order was based, inter alia, upon the following stipulations of facts:

“Atlantic County Orphans Court.

“In the matter of the estate of Antonio Celia, deceased.

Stipulation of facts.

“It is hereby stipulated that the following facts are true, to the best of our knowledge and belief and may be considered by the above court in construing the last will and testament of Antonio Celia, deceased, upon petition for distribution of his estate:

“1. That Joseph Celia, John Celia, Mamie Yalloni, Lizzie Loftus (incorrectly named Loñand) and Eose Celia Tucci, the persons named in paragraph 3, section (c) of the last will and testament of Antonio Celia, deceased, are all the children of John Celia, who was a brother of the testator,, and who predeceased him.

“2. Mary Celia MacIntyre and Catherine Celia are the only children and next of kin of Joseph Celia, who died on June 16th, 1929.

“3. John Celia and Mamie Yalloni, two of the persons named in said paragraph 3, section (c) of said will died without leaving issue.

“4. Antonio Robert Celia died on the 11th day of August, 1929.

Gorson & Gorson,

Proctors for Florence M. Riddle and Girard Trust Company, Trustees.

Vincent S. Haneman, Proctor for II. G. Harris, administrator of the Estate of Antonio Robert Celia.

Boyle & Archer,

Proctors for Mary Celia MacIntyre and Catherine Celia.

Wilfred B. Wolcott,

Proctor for Lizzie Loftus and Rose Celia Tucci.”

"Atlantic County Orphans Court.

"In the matter of the estate of Antonio Celia, deceased.

Stipulation of facts.

"It is hereby stipulated that the following facts are true, to the best of our knowledge and belief and may be considered by the above court in construing the last will and testament of Antonio Celia, deceased, upon petition for distribution of his estate:

"1. Antonio Celia and Rhoda Celia had one natural child, Mary Celia, born June 1st, 1877.

"2. Mary Celia married Harry Blake and had one child, Antonio Robert Celia, born February 19th, 1908.

"3. Mary (Celia) Blake died August 17th, 1908.

"4. Antonio Robert Celia was legally adopted by Antonio Celia and Rhoda Celia November 3d, 1908.

“5'. Antonio Robert Celia died August 11th, 1929, leaving him surviving no children, no brothers or sisters of the whole blood, but leaving him surviving a widow, Frances H. Celia, and his natural father, Harry Blake, and brothers and sisters of the half blood, children of Harry Blake.

"6. Rhoda Celia died June 24th, 1915, leaving her surviving her husband, Antonio Celia and her natural grandson and adopted son, Antonio Robert Celia, and leaving no other known blood relatives.

“7. Antonio Celia died August 22d, 1919, leaving him surviving, as his only heir, his grandson and adopted son, Antonio Robert Celia.

Gorson & Gorson,

Proctors for Florence M. Riddle and Girard Trust Company, Trustees.

Vincent S. Haneman, Proctor for H. G. Harris, administrator of the Fstate of Antonio Robert Celia.

Proctors for Mary Celia MacIntyre and Catherine Celia.

Wilfred B. Wolcott,

Proctor for Lizzie Loftus and Rose Celia Tucci.”

“Atlantic County Orphans Court.

“In the matter of the estate of Antonio Celia, deceased.

Stipulation of facts.

“It is hereby stipulated that the following facts are true, to the best of our knowledge and belief, and may be considered by the above court in construing the last will and testament of Antonio Celia, deceased, upon petition for distribution of his estate:

“1. Mary Celia, born June 1st, 1877, was the child of Rhoda Celia. (Proctors for Mary Celia MacIntyre and Catherine Celia had no knowledge sufficient to form a belief as to who the father of Mary Celia was; that they neither confirm nor dispute that the father of Mary Celia was Antonio Celia.)

“2. Mary Celia married Harry Blake and had one child, Antonio Robert Celia, born February 19th, 1908.

“3. Mary (Celia) Blake died August 17th, 1908.

“4. Antonio Robert Celia was legally adopted by Antonio Celia and Rhoda Celia November 3d, 1908.

“5. Antonio Eobert Celia died August 11th, 1929, leaving him surviving no children, no brothers or sisters of the whole blood, but leaving him surviving a widow, Frances II. Celia, and his natural father, Harry Blake, and brothers and sisters of the half blood, children of Harry Blake.

“6. Bhoda Celia died June 24th, 1915, leaving her surviving her husband, Antonio Celia,. and her natural grandson and adopted son, Antonio Eobert Celia, and leaving no other known blood relatives.

“7. Antonio Celia died August 22d, 1919, leaving him surviving as his only heir, his grandson and adopted son, Antonio Eobert Celia.

Proctor for Florence M. Riddle and Girard Trust Company, Trustees.

Proctor for PL. G. Harris, administrator of the Estate of Antonio Robert Celia.

Nothing admitted concerning ‘grandson’ in paragraph 7.

Boyle & Archer,

Proctors for Mary Celia MacIntyre and Catherine Celia.

Proctor for Lizzie Loftus and Rose Celia Tucci.”

Lizzie Loftus and Eose Celia Tucci file their petition of appeal in this court from certain portions of said order of distribution, as follows:

1. That portion which provided for the setting aside of the sum of $40,000 in Liberty Bonds of the United States to provide for the annuities to Jennie Celia, Joseph Badaracco and Mary Barry.

2. That portion which provided for the pa3rment of one-eighth part each to Hugh Eiddle, Hopeshare Investment Company, Bruce Eiddle and Graeme Eiddle; one quarter to Jennie Celia, one-twentieth to Lizzie Loftus, one-twentieth to Eose Celia Tucci, three equal one-twentieth parts thereof, so far as the same consists of personal property, to Howard G. Harris, administrator of the estate of Antonio Eobert Celia, deceased, and insofar as the same consists of real property, to Frances H. Celia, widow of Antonio Eobert Celia, deceased.

3. That portion which provided for a counsel fee of $2,000 to Messrs. Gorson & Gorson, proctors for the estate of Antonio Celia, deceased.

No attempt is made to sustain the appeal from that portion of the order which directed the payment to Hugh Eiddle, Hopeshare Investment Company, assignee of Donald Eiddle, Bruce Eiddle and Graeme Eiddle, nor to the payment to Jennie Celia, his sister, the attack being made, primarily, upon the construction of the clause (c) “and the other one-quarter interest to go to Joseph Celia, nephew; John Celia, nephew; Mamie Valloni, niece; Lizzie LofTand, niece, and Eose Celia (now married, husband’s name unknown), niece, if they be living share and share alike,” all of whom excepting Lizzie Loftus and Eose Celia Tucci, having departed this life prior to the death of Antonio Eobert Celia.

It is apparent that the judge of the orphans court held that these bequests were made to the persons in said clause named, as individuals and not as a class, and to those individuals living at the time of the death of the said Antonio Eobert Celia, share and share alike.

It will be noted that subdivision (a), clause 3 of the will, provided for the division “among the children of Mr. and Mrs. William Eiddle,” and in clause (b), in the event of the death of Jennie Celia, “to her children,” while subdivision (c) specifies the beneficiaries by name and designates the relationship.

A gift by will to persons by name indicates the testatrix’s intention to give to them as individuals, and they take as tenants in common. The New Jersey Title Guarantee and Trust Co. v. Elsworth, 108 N. J. Eq. 229.

A presumption therefore arises that the testator intended these persons should take as individuals. Clark v. Morehous, 71 N. J. Eq. 65,8. I find that this presumption is not overcome by an examination of the will, as was done in Security Trust Co. v. Mary Ann Lovett, 78 N. J. Eq. 445.

The appeal from the orphans court as to this direction of the funds under this provision of the will will be affirmed.

That portion of the order directing the setting aside of Liberty Bonds to the amount of $40,000 and the allowance of fees will also be affirmed.

The judge of the orphans court, who tried the cause and saw and heard the witnesses, should be upheld, if he may be, without doing violence to the case as it appears upon the record. In the Matter of the estate of Francis L. Wandell, deceased, 92 N. J. Eq. 195.

In Smith v. McDonald, 71 N. J. Eq. 261, a somewhat similar case, Mr. Justice Swayze said: “They were not allowed counsel fees in the orphans court or in the prerogative court. We are unwilling to disturb the action of these courts on this subject. We have, however, been aided in the consideration of a novel, difficult and debatable question by the arguments and briefs of appellants’ counsel, as well as of respondents’ counsel, and counsel fees will be allowed to both sides in this court.” Same case in prerogative court, 69 N. J. Eq. 765 (at p. 770).

The order of the orphans court appealed from will therefore be affirmed.

Vincent S. Haneman, Esquire, proctor for H. G. Harris, administrator, and Prances Celia, appellee, applies for an allowance in this court. He will be allowed a fee of $500, no other allowance having been made to him.  