Fox v. Snow

76 A.2d 877, 6 N.J. 12, 1950 N.J. LEXIS 153

• Court: Supreme Court of New Jersey
• Decided: December 4, 1950
• Status: Published

Opinions

Per Curiam.

This cause is here-on our own certification.

The case involves the construction of a paragraph of the will of Rosa E. Green, deceased, of the Borough of Haledon. 'The paragraph provided as follows:

“Third: I give and bequeath unto my husband, William L. Green all of the money which I have on deposit at the Paterson Savings and Trust Company, Paterson, New Jersey, however, any money which is in the said account at the. time of my said husband’s death, the said sum shall be held by my niece, Catherine King Fox, absolutely ■and forever.”

The will was admitted to probate on April 25, 1949. The liusband, William L. Green, died intestate on May 30, 1949. The legacy bequeathed under the paragraph in question is still on deposit .in the Paterson Savings and Trust Company.

The question presented is whether William L. Green became the absolute owner of the money on deposit, the gift over to the plaintiff, Catherine King Fox, being void, or whether the husband took a life estate only and the fee vested in the niece.

The bequest to the husband was in general terms with an absolute power of disposal. Under such circumstances the gift over of the part not disposed of is void. As determined by Judge Grimshaw below, the husband, William L. Green, took an absolute ownership, an estate in fee, of the bank account. Downey v. Borden, 36 N. J. L. 460 (E. & A. 1872); Tuerk v. Schueler, 71 N. J. L. 331 (E. & A. 1904); Gaston v. Ford, 99 N. J. Eq. 592 (Ch. 1926); Briggs v. Faulkner, 120 N. J. Eq. 1 (Ch. 1936); Trafton v. Bainbridge, 125 N. J. Eq. 474 (E. & A. 1939).

Appellants ask this Court to explicitly and expressly overrule the long established law of this State. This we-decline to do. Such action would be fraught with great danger in this type of case where titles to property, held by bequests and devises, are involved. A change of the established law by judicial decision is retrospective. It makes the law at the time of prior decisions as it is declared in the last decision, as to all transactions that can be reached by it. On the other-hand a change in the settled law by statute is prospective-only. Stockton v. Dundee Manufacturing Co. 22 N. J. Eq. 56 (Ch. 1871).

The judgment of the Superior Court is affirmed.