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under identical terms equates to 50 percent of the value of the
agency. According to respondent, decedent wanted to give all of
the stock to her daughter while wanting her son to receive cash
for one-half of the agency's value, thereby creating a charge
against agency stock.
Respondent points out that after decedent's stock ownership
fell to 75 percent, she executed the codicil to her will that
decreased the monthly payments required under the will
proportionately to $3,750 (75 percent x $5,000). Decedent's
codicil also directed that Patricia Low had to make to her father
only one-half of the $2,500 payments called for under the
agreement. The codicil did not say what was to happen to the
other half of the payments; respondent argues that the other half
of the payments were to be forgiven. Consequently, Patricia Low
still would be paying $5,000 a month ($3,750 + $1,250) for almost
10 years (one-half the value of the agency stock) to own 100
percent of the agency stock. The change in the recipient to the
surviving spouse was to insure that decedent's daughter-in-law
got none of the payments in a divorce settlement.
Respondent further argues that decedent did not intend to
create a condition precedent, as petitioner contends. Under New
Jersey law, if a condition precedent to a bequest fails, then the
bequest fails; the bequest is never made. "[I]f a devise other
than a residuary devise fails for any reason, it becomes a part
of the residue." N.J. Stat. Ann. sec. 3B:3-36 (West 1983).
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