Seidman, J. A. D.
(dissenting). This appeal is from an order supplementing a judgment of divorce. The issue involved appears to be one of first impression not only in this State but also in other jurisdictions whose matrimonial statutes provide for the distribution of marital property in the event of a divorce. It is the eligibility for equitable distribution of the corpus of a testamentary trust of which defendant husband was the beneficiary, where the trust was created prior to the marriage and terminated during the marriage but before the filing of the divorce complaint. The trial judge held that it was eligible for distribution and included the corpus, or balance thereof, among the assets available for that purpose.
My colleagues agree with the result reached and have accordingly voted to affirm the judgment under review. I come to an opposite conclusion for reasons which follow and am therefore constrained to dissent.
The underlying facts are fully set forth in the majority opinion and require no repetition.
The thrust of defendant’s argument is that since the “beneficial interest in the trust herein was clearly property with value in which the beneficiary-future husband ‘acquired an interest’ prior to marriage,” the corpus, though received by him after the marriage, was not eligible for distribution. He reasons in reverse that if he had been married at the inception of the trust and divorced thereafter but prior to the age of 25, his trust interest would have been distributable as an interest acquired during the marriage. The conclusion reached is that in this ease “the husband’s expectancy — the absolute right to the trust property at age twenty-five — accrued prior to the marriage and was clearly more certain than a mere chose in action requiring litigation and adjudication or settlement.”
Plaintiff, on the other hand, argues that defendant could not have exercised control over or gained access to the corpus prior to age 25, and that the nature of his interest in the trust was not such that he could be considered to have “acquired” ownership of it for the purpose of equitable distribution. This view is the one that the trial judge seems to have adopted.
Based upon their concept of the statute in question, my colleagues conclude that defendant’s “share in the corpus” of his grandfather’s estate was not “legally and beneficially acquired” until he attained the age of 25, at which time the marriage still subsisted. My position is that defendant acquired the property prior to the marriage within the meaning of N. J. 8. A. 2A:34-23, hence, it was not subject to distribution as an incident to the divorce proceedings. The gulf which separates us is the interpretation to be given to that clause of N. J. S. A. 2A:34r-23, particularly the emphasized portion, which, in pertinent part, empowers the court in all actions for divorce “to effectuate an equitable distribution of the property, both real and personal, which was legally and beneficially acquired by them or either of them during the marriage.” (emphasis supplied)
The dearth of helpful precedents elsewhere is no doubt largely attributable to wide variations in statutory provisions in the divorce laws of the several states, ranging from no distribution at all of marital property, as in New York, to the distribution of all property, whether acquired before or after the marriage, as in Kansas. At these extremes it is evident that the problem confronting us here would not arise. Nor would it arise in those states having community property systems, for there property owned by each spouse before marriage remains separate, and while that acquired during the marriage becomes community property, constitutional and statutory provisions exclude any gift, inheritance, devise or bequest received by one spouse alone during the marriage, de Funiak, Principles of Community Property, § 69 at 171-174; Baxter, Marital Property, § 11:1 at 173. The Uniform Marriage and Divorce Act, thus far adopted in whole or in part by only a bare handful of states, provides for the division, in “just proportions” based upon enumerated factors, ,of marital property, which is defined as property acquired by either spouse subsequent to the marriage, but excluding, among other things, property acquired by gift, bequest, devise or descent. 9 Uniform Laws Annotated (Matrimonial, Family and Health Laws), 490 (1973).
As indicated, onr statute limits the distribution of property in divorce actions to that which was acquired by either or both spouses during the marriage. It is unique, however, in its use of the words “legally and beneficially” in relation to the property so acquired. Those words do not appear, so far as I have been able to ascertain, in any other statutory provision for the distribution of marital property in divorce proceedings.
There is no legislative history to aid us in construing our statute. The Divorce Law Study Commission, in its Final Report to the Governor and the Legislature, dated May 11, 1970, left for future study by “a fully funded, fully authorized entity” a number of problems, among which was the question of the “fair allocation of property upon termination of a marriage by divorce.” Report, at 13-14. The bill to revise the divorce laws, as originally introduced, did not include any provision respecting marital property. The only reference to the matter occurred during the public hearing on the bill before the Assembly Judiciary Committee, when the New Jersey Commissioner on the Uniform Laws recommended that the uniform statute on divorce be adopted. The inclusion of a provision for the equitable distribution of marital property seems to have come about as the result of a Senate amendment, without further explanation. See Painter v. Painter, 65 N. J. 196, 207, 217 (1974). See also Comment, “Painter v. Painter: Equitable Distribution of Marital Assets Upon Divorce,” 48 Temple L. Q. 397 (1975).
Underlying the statutory scheme, however, is the recognition that each spouse contributes something “to the establishment of the marital estate even though one or the other may actually acquire the particular property,” and therefore, in the event of divorce, “each spouse should receive his or her fair share of what has been accumulated during the marriage.” Chalmers v. Chalmers, 65 N. J. 186, 194 (1974). But property owned by either spouse at the time of the marriage, as well as subsequent increments in value (unless contributed to by the other spouse or for which the husband and wife are jointly responsible), will not qualify as an asset eligible for distribution, nor will the “income or other usufruct derived from such property,” or any asset “for which the original property may be exchanged or into which it, or the proceeds of its sale, may be traceable.” Painter v. Painter, supra 65 N. J. at 214 (1974).
It is readily evident that the key words to be considered are “property,” “acquired” and “legally and beneficially,” as they are used in the context of the statute.
As for “property,” Pavnter, without further defining the word, held the legislative intent to be that all property, regardless of its source, in which a spouse acquired an interest during the marriage, should be eligible for distribution in the event of a divorce. 65 N.J. at 217. A definition of “property” is found in N. J. S. A. 1:1 — 2, which states that the enumerated words and phrases thereunder, when used in any statute, “[ujnless it be otherwise expressly provided or there is something in the subject or context repugnant to such construction * * * shall have the meaning herein given to them”:
Personal property. “Personal property” includes goods and chatels, rights and credits, moneys and effects, evidences of debt, choses in action and all written instruments by which any right to, interest in, or lien or encumbrance upon, property or any debt or financial obligation is created, acknowledged, evidenced, transferred, discharged or defeated, in whole or in part, and everything except real property as herein defined which may be the subject of ownership.
$ 4* $ *
Real estate; real property. The words “real estate” and “real property,” include lands, tenements and hereditaments and all rights thereto and interests therein.
We find nothing in the language of N. J. S. A. 2A:34— 23 that is inimical to these all-embracing definitions of property, real and personal. Painter is clearly in accord.
The word “acquired” was considered in Painter, though in a particular setting. There the issue was whether the legislative intent was to limit marital property eligible for equitable distribution to that which was “attained by the individual by his own efforts,” as the statute had been construed by the trial judge, thus excluding gifts and inheritances. The Supreme Court held that the Legislature used the word in a more comprehensive sense to include not only property title to which was the direct or indirect result of an expenditure of effort on the part of a spouse, but also assets title to which was received by gift or inheritance, or in any other way. 65 N. J. at 215. The court said, further:
Had the former, more restrictive meaning been intended, we believe that some confining language would have been employed to manifest this purpose. It is certainly a commonplace to say that property has been acquired by gift or that an asset has been acquired by inheritance. In fact the thought is probably most often expressed in this fashion. We think the word should be given this more inclusive meaning in the statute, absent any indication to the contrary, [at 215]
Thus far, it seems evident from Painter that “property” and “acquired” are to be construed expansively. While the words “legally and beneficially,” as used in the statute, have not yet been defined in any reported case, no rational ground has been demonstrated for treating them restrictively. My colleagues extract from a standard dictionary a definition of “legal” as “conforming to or permitted by law,” and, of “beneficial,” as “receiving or entitling one to have or receive in one’s own right and for one’s own benefit an advantage, use or benefit * * It is hazardous to define words in a statute by selective recourse to a dictionary. No doubt the above is one meaning of “legal,” but the sense there is in contradistinction to “unlawful” or “illicit,” concepts which have nothing to do with the subject-matter of the statute. The definition of “beneficial” is, however, closer to the mark.
The point is that the words “legally and beneficially” are used in tandem with the words “property acquired.” There is a long-standing maxim of statutory construction that the meaning of words may be indicated and controlled by those with which they are associated. Germann v. Matriss, 55 N. J. 193, 220 (1970); Boileau v. De Cecco, 125 N. J. Super. 263, 267 (App. Div. 1973), aff’d 65 N. J. 234 (1974). Furthermore, referential and qualifying words and phrases, where no contrary intention appears, refer solely to the last antecedent. State v. Wean, 86 N. J. Super. 283, 288 (App. Div. 1965); State v. Congdon, 76 N. J. Super. 493, 502 (App. Div. 1962); 2A Sutherland, Statutory Construction (4 ed. 1973), § 47.33 at 159. Clearly, then, the words “legally and beneficially” must relate to, and thus be construed in the context of, property and its acquisition. We know from Painter that all property in which a spouse acquired an interest during the marriage should be eligible for equitable distribution. The converse must follow logically, namely, that any property in which a spouse acquired an interest prior to the marriage is not eligible for equitable distribution.
I agree with my colleagues that “legally and benefically” cannot be treated as surplusage. But this adds no support to their interpretation of the words as meaning that “the spouse acquires the property within the intention of N. J. S. A. 2A:34-n23 when he or she acquires a title which carries with it the effective power to control or use or enjoy.” The statute refers neither to title nor to effective control, nor does it require that the property be reducible to immediate possession. It deals with property acquired by a spouse, and property, by definition, includes all interests therein without distinction, and regardless of their characterization either as legal or beneficial. Why property must have the further attribute of “effective power to control” or be reducible to immediate possession in order to qualify for distribution in matrimonial eases .is not explained.
It is well to heed the dictum in Stern v. Stern, 66 N. J. 340, 348 (1975),, which cautioned -us to be wary of the term “vested interest,” in the context of equitable distribu tion of property under the divorce statute, as a relic of feudal days which, though playing an important part in the development of the law of future interests, was not relevant to the question of equitable distribution. True, Stern left for another day the “important and possibly difficult” question as to what future interests may qualify as property within the meaning of the divorce statute (an issue not involved here), but it emphasized that the statute made no reference to the vesting of an interest in property (nor, indeed, to title to property), but merely required that property, to be available for equitable distribution, had to be acquired during the marriage.
I find no suggestion in Stern that a fixed, present interest in property, such as the one under review, should not be eligible for equitable distribution simply because the owner may not have had the power of “effective control” over it or cannot immediately reduce it to possession. Nor do I discern jn the court’s intimation that not all “future interests may qualify as ‘property’ ” within the intendment of the statute, any recognition by the court that not all “property” is eligible for equitable distribution. Eather, I sense in the foregoing no more than a postponement for later consideration of the issue of whether certain “future interests” may not be property at all, insofar as the divorce statute is concerned. Beyond this, there is nothing in Stern which even remotely supports the majoritys concept that the language therein “suggests to us that what property was eligible depended purely on whether it qualified as such within the phrase ‘legally and beneficially acquired.’”
That which I perceive to be the intendment of the dictum in Stern is illustrated by several cases in other jurisdictions.
In Marriage of Rinehart, 552 P. 2d 1346 (Or. App. Ct. 1976), the husband contended, among other things, that in making provision for the division of property in the divorce decree, the court erred in assigning a value to his one-half interest in his mother’s home, which was sub ject to her life estate. He argued that as his mother was still alive and he could not therefore presently enjoy the home it was of little or no value. The court disagreed, holding that the remainder interest was a valuable asset, despite the fact that the placing of an exact value on it might be difficult. A comparable result was reached in Marriage of Hix, 27 Or. App. 197, 555 P. 2d 811 (Ore. App. Ct. 1976), where the asset involved was a one-sixth interest in a ranch which the husband had inherited during the marriage, subject to his father’s life estate, and from which the husband would receive no income during his father’s lifetime.
On the other side of the coin is Loeb v. Loeb, 261 Ind. 193, 301 N. E. 2d 349 (Ind. Sup. Ct. 1973), which involved an inter vivos trust established for the benefit of the grantor’s three children, one of whom was defendant husband. The trust instrument provided for the payment of the income to the grantor for life, and upon her death the principal and accumulated income would be divided equally among the children; provided, however, that if any child predeceased the grantor, that child’s share could be distributed to the survivors. The mother was still alive at the time of the divorce proceedings. On these facts, the court held that the husband’s interest was not includible in the property settlement award because he had no present interest of any value, his future interest being contingent upon his surviving his mother. See also, Storm v. Storm, 470 P. 2d 367 (Wyo. Sup. Ct. 1970); DeRevere v. DeRevere, 5 Wash. App. 446, 488 P. 2d 763 (App. Ct. 1971).
I advert to my recurring theme that as long as the claimed asset is property as defined in N. J. S. A. 1 :l-2, it matters not whether the interest was acquired “legally” or “beneficially.” I do not read those words in the conjunctive, nor is there any compelling reason to do so. The decisive factor is whether the interest was a fixed, present one acquired during the marriage.
The majority expresses the further view that cases following Painter were concerned with the meaning of “legally and beneficially” and “generally their interpretations accord with one view of the meaning and intent of that phrase.” I have reviewed carefully the cases cited and, with one exception, find them completely devoid of any consideration or discussion of that phrase. I do not extrapolate anything from them inconsistent with my concept thereof.
In Pellegrino v. Pellegrino, 134 N. J. Super. 512, 515 (App. Div. 1975), defendant husband, a municipal fireman, had the absolute right to the repayment of his contributions into a pension fund in the event of resignation, dismissal or death prior to retirement. This court held that since he had “a present fixed right to the future enjoyment of the contributions paid by him, even though the date of that enjoyment be uncertain,” the amount contributed by him from his earnings during the marriage (up until the date of filing the divorce complaint) was property acquired during the marriage and subject to equitable distribution. A like result was reached in Blitt v. Blitt, 139 N. J. Super. 213 (Ch. Div. 1976), where defendant husband had an absolute right to 50% of his employer’s contributions to a pension plan on his behalf (defendant making no contributions of his own), the money being returnable to the member upon his resignation or dismissal prior to qualifying for a benefit. As in Pellegrino, it was held that the por Lion of the pension plan acquired during marriage should be subject to equitable distribution and additionally, that the postponement of enjoyment was to be considered in determining the manner in, and the time at which, that portion of the plan would be divided. Cf. Kruger v. Kruger, 139 N. J. Super. 413 (App. Div. 1976).
Neither Pellegrino nor Blitt turned on any definition of property “legally and beneficially” acquired. Each recognized the existence of a present fixed right to the pension fund, with only its enjoyment postponed. In Pellegrino particularly, emphasis was placed on the construction of the word “acquired” in a “comprehensive sense.” The fact that the fireman in that case had an absolute right to the repayment of his contributions in the event of the termination of employment by resignation or discharge prior to retirement, was significant on the issue of equitable distribution, not from the standpoint of control or right to immediate possession of the funds, but to distinguish that type of pension plan from the one involved in Tucker v. Tucker, 121 N. J. Super. 539 (Ch. Div. 1972), where the employee made no contributions to the plan and had no right of withdrawal before retirement. See also, White v. White, 136 N. J. Super. 552 (App. Div. 1975), where this court stressed that whatever right plaintiff might have to future retirement benefits, where there was no right to prior withdrawal of funds, it did not constitute property acquired during the marriage and was not subject to equitable distribution. It is noteworthy in Blitt that, although the method of repayment, whether in a lump sum or over a period of years, was within the sole discretion of the company’s pension committee, such control, the court said, “does not lead to the conclusion that property has not been acquired’ within the meaning of the statute.” 139 N. J. Super, at 217.
In Callahan v. Callahan, 142 N. J. Super. 325 (Ch. Div. 1976), involving stock options, defendant husband contended that a stock option did not constitute property subject to equitable distribution since, he argued, it was not an asset but merely a right to acquire an asset in the future, and, moreover, was not transferable otherwise than by will or pursuant to the laws of descent and distribution. Furthermore, the options would terminate if the employee left the company without its consent within three years from the date on which the option was granted. Despite these restrictions, which bore significantly on the employee’s “effective power to control,” the court held (at 328) that the asset represented property which, “although not cash in hand, is not subject to a contingency, has a reasonably discernible value and awaits but the owner to take actual possession.” Nothing was said therein respecting acquisition o£ the property “legally and beneficially.”
A chose in action was the disputed item in Di Tolva v. Di Tolvo, 131 N. J. Super. 72 (App. Div. 1974). The husband had sustained injuries in an automobile accident while the parties were married. Prior to the filing of the divorce complaint both spouses instituted a negligence action against the claimed tortfeasors. Included were not only the husband’s claims but also those of the wife for loss of her husband’s services and consortium. The suit was settled after the entry of the judgment of divorce for $7500, of which an amount which came to 6J^% thereof was allocated for the per quod claim. The divorce judgment had, among other things, awarded the wife 20% of the prospective recovery in the negligence action. This court held in substance that, taking the “expansive view” in Painter of property acquired during the marriage, together with the general statutory definition of “personal property” in N. J. S. A. 1 :l-2 which included choses in action, the cause of action for personal injuries and consequential damages by reason of an accident occurring during the marriage was personal property acquired and owned by the injured person, and also by the spouse to the extent of the latter’s interest. We said, further (at 78-80), in ihese circumstances the judge granting the divorce may make an equitable allocation of any future recovery on the entire chose in action, the manner of distribution being left to his discretion. It did not matter that a recoveiy might not come to fruition.
See Hughes v. Hughes, 132 N. J. Super. 559 (Ch. Div. 1975), for a comparable treatment of a spouse’s unliquidated claim for worker’s compensation benefits as a chose in action.
Pew things are more uncertain than the outcome of a lawsuit, especially in the tort field. Unless and until a court or jury determines the issue of liability favorably to the claimant and fixes the amount of the damages, the chose in action is just that and no more. To say that the litigant in such case has “control” of the corpus of the claim is realistically unsound. It is deserving of emphasis to note again that in none of tire cited cases did the court speak of or even inferentially consider whether the asset had been acquired “legally and beneficially.”
Mention should be made of Gauger v. Gauger, 132 N. J. Super. 89 (Ch. Div. 1975), affd 138 N. J. Super. 366 (1976), certif. granted 70 N. J. 524 (1976), in which one finds for the first time specific reference to the phrase “legal and beneficial acquisition.” The issue was the availability for equitable distribution of a parcel of real property acquired in 1941 by defendant husband and his mother as joint tenants with the right of survivorship. Plaintiff and defendant were married in 1946, the mother died in 1972, and the divorce complaint was filed in 1973. The trial judge held that defendant acquired ownership of the realty upon the original grant and not upon the death of his mother, and thus the subject realty, not having been acquired during coverture, was not subject to possible equitable distribution. This court affirmed o. b., rejecting the contention on appeal that the death of the mother resulted in the “legal and beneficial acquisition” of property by defendant during the marriage.
I turn now to an examination of the nature of the estate or interest created by a testamentary trust such as the one here involved, in order to determine the property rights derived therefrom. The creation of a trust is, of course, a method of disposing of property. Scott, Trusts (3 ed. 1967),
§ 74 at 676. It is elementary, moreover, that an express trust is a fiduciary relation in which the trustee holds property interests for the benefit of another, and every property interest susceptible of ownership may be the subject-matter of a trust. Bogert, Trusts and Trustees (2 ed. 1965), §§ 111 and 112. The trust estate is commonly called the corpus or principal, as distinguished from the income thereof. The trustee is the legal owner of the property held by him. Moran v. Joyce, 125 N. J. L. 558, 562 (Sup. Ct. 1941). The beneficiary, or cestui que trust, has an equitable estate in the corpus, where the income is directed to be paid to the beneficiary until the payment of the principal at a future date. Strawbridge v. Strawbridge, 35 N. J. Super. 125, 130 (Ch. Div. 1955). In such ease the gift will be deemed vested immediately on the death of the testator, in the sense that the interest of the beneficiary is a present one, as distinguished from a future interest. Gifford, adm’r. v. Thorn, 9 N. J. Eq. 702, 708 (E. & A., 1855); Forbringer v. Romano, 10 N. J. Super. 175, 182 (App. Div. 1950); Bardfeld v. Bardfeld, 23 N. J. Super. 248, 252-253 (Ch. Div. 1952); Potter v. Watkins, 99 N. J. Eq. 538, 541-542 (Ch. 1926); Fidelity Union Trust Co. v. Rowland, 99 N. J. Eq. 72, 74 (Ch. 1926); Dusenberry v. Johnson, 59 N. J. Eq. 336, 338 (Ch. 1900). See 6 N. J. Practice (Clapp, Wills and Administration), § 579 at 103 (1962).
It has long been the law of this State that a gift to a trustee is regarded in equity as a gift to the cestui que trust, as if it had been made directly. Forbringer v. Romano, supra, 10 N. J. Super, at 183; Wendell v. Hazel Wood Cemetery, 7 N. J. Super. 117, 123 (App. Div. 1950); Skovborg v. Smith, 8 N. J. Super. 424, 426 (Ch. Div. 1950); Byrne v. Byrne, 123 N. J. Eq. 6, 17 (Ch. 1938); Traverso v. Traverso, 99 N. J. Eq. 514, 519 (Ch. 1926); Neilson v. Bishop, 45 N. J. Eq. 473, 476 (Ch. 1889). Of. Lippincoit v. Pancoast, 47 N. J. Eq. 21, 26 (Ch. 1890). The present interest of a cestui is nonetheless fixed, even where, as here, there is a gift over if the beneficiary does not attain the stipulated age for the payment of the corpus. In such ease, where it clearly appears that the intention of the testator was to make a gift with the time of payment postponed until the attainment of the designated age, the gift is subject only to divestment in the event of failure to reach such age. Fidelity Union Trust Co. v. Potter, 8 N. J. Super. 533, 537 (Ch. Div. 1950) : Neilson v. Bishop, supra 45 N. J. Eq. at 476. The uncertain event is said to mark the time of payment, not the time of taking title. 6 N. J. Practice (Clapp, Wills and Administration), § 579 at 103-104 (1962). While the interest may cease entirely upon the happening of a condition subsequent, it is still a present and fixed interest.
It should be emphasized at this point that whatever may have been the nature of defendant’s interest in the trust established for his benefit, prior to his attaining the age of 21 years, i. e., whether it was a future or present one, there is no doubt that upon his reaching that age his interest was a present one, since he was then, if not earlier, entitled to the immediate beneficial enjoyment of the proceeds of the trust, namely, the income thereof. See Fidelity Union Trust Co. v. Egenolf Day Nursery Ass’n., 64 N. J. Super. 445, 453 (Ch. Div. 1960).
The nature of the beneficiary’s interest is aptly and concisely stated in Restatement, Trusts 2d, § 130 at 282:
Except as stated in § 131 [not pertinent here],
(a) if the trust property is personal property, the interest of the beneficiary is personal property;
(b) if the trust property is real property, the interest of the beneficiary is real property * * * *.
The trial judge’s concept, shared by the majority, was that the control date” for determining eligibility for equitable distribution in a situation such as this was the date that the person is entitled to receive whatever is left to him.” In light of the foregoing, I can perceive of no sound reason why this should be so. As I have explained at considerable length, defendant’s beneficial interest in the corpus of the trust was property, not diminished in any way by his inability to reduce the corpus to immediate possession. That property was acquired before the marriage. Only the enjojunent of the corpus came to fruition during the marriage. I therefore hold that the trust corpus here was not eligible for equitable distribution except to the extent that it may have increased in value during the marriage by reason of the efforts of the other spouse or those for which both were jointly responsible. Painter v. Painter, supra, 65 N. J. at 214; cf. Scherzer v. Scherzer, 136 N. J. Super. 397, 401 (App. Div. 1975), eertif. den. 69 N. J. 391 (1976).
I would reverse and remand for further proceedings consistent with the foregoing.
It is noteworthy that the Uniform Act has now been revised so as to provide, as an Alternative A (Alternative B relating only to community property, for use in states having that system), for the equitable apportionment of all property and assets belonging to either spouse however and whenever acquired, in accordance with the factors set forth therein. See Uniform Laws Annotated (Supplementary Pamphlet, 1974 to 1976), § 307 at 289.
