Opinion
No. 41/126.
11-21-1916
ISENBURG v. ROSE et al.
Pitney, Hardin & Skinner, of Newark, for complainant. Francis Lafferty, of Newark, for defendant Fidelity Trust Co.
Suit by Eda S. Isenburg against Fannie Rose and others. Decree advised that bill be dismissed.
Pitney, Hardin & Skinner, of Newark, for complainant. Francis Lafferty, of Newark, for defendant Fidelity Trust Co.
FOSTER, V. C. This bill is filed by complainant for the construction of the will of her grandfather, Joseph Isenburg, who died September 27, 1907. The defendant, Fidelity Trust Company, is the substituted administrator of the estate and the trustee of the trusts contained in the will.
The provisions of the will which are questioned in these proceedings are the third and fourth clauses, which read as follows:
"Third: I give and bequeath one-fourth of the net income, use and profit of all property, real and personal, of which I die seized and possesed, to each of my children, Fanny Rose, Moses L. Isenburg and Carrie Klein, and to my granddaughter Fannie Steiner, to be had and enjoyed by them for and during the term of their respective natural lives.
"Fourth: At the time when each of my three children above named dies, respectively, I give, devise and bequeath the equal one-fourth part of all my property, real and personal, of which I die seized or possessed in equal shares to the issue of such child so dying, to be paid over to such issue, being my grandchildren, when of age, and until such time the net income thereof shall be used for their respective support and education."
Complainant is one of the two children which Moses L. Isenburg, the son of the testator, left surviving him at his death on January 19, 1908; she became 21 years oldon March 5, 1914, and her brother, Louis S. Isenberg, is still an infant.
By the sixth clause of the will, testator directed his executors to convert such of his personal property into money as should appear advisable to them, to create a trust fund of $10,000 for the benefit of his daughter-in-law. By the seventh clause he gave the executors power to sell his real estate, and by the eighth clause he authorized his executors to improve his lands by erecting buildings thereon, and to mortgage the lands for such purpose.
The larger part of the estate consists of real estate, and complainant contends that she was entitled, under the fourth clause of the will, to one equal one-eighth share in the real and personal estate on attaining her majority, and she asks that the substituted administrator be directed to sell all of testator's real estate, that the value of her share therein be fixed, and the administrator be directed to pay her the same from the proceeds of the sale of the real estate.
The substituted administrator insists that complainant is only entitled to the payment of her share of the personal estate, and that the real estate passes to her as a tenant in common with the other beneficiaries named in the will, and that it is without power to make a conversion of the real estate into money for the purpose of fixing the value and making payment to complainant for her share therein.
Complainant's claim rests on the insistment that in addition to the expressed power of sale there is also a necessarily implied power of sale to enable the administrator to convert the land into money, for the purpose of making the division thereof which testator intended, the argument being that the will shows the blending of the real and personal estate into a single fund, a division of this fund into equal shares, with a different disposition of the several shares to the respective beneficiaries, incompatible with a devise of lands to tenants in common, coupled with a power of sale, and that the direction to the executors to pay the matured shares and to use the income from unmatured shares for the support and education of infant beneficiaries, necessarily implies the power of investment, and therefore an implied power to sell the real estate for the purpose of investing the proceeds thereof.
The question of conversion is to be determined from the intention of the testator as shown by the provisions of his will. If it appears therefrom that there is a direction for a conversion, or an absolute necessity to sell in order to carry out the provisions of the will, or if there is such a blending of the real and personal estate by the testator in his will as clearly to show that he intended to create a fund thereby, and to bequeath the fund as money, an equitable conversion will be implied to effectuate the intention of the testator.
In Chandler v. Thompson, 62 N. J. Eq. 723, 48 Atl. 583, Mr. Justice Van Syckel for the Court of Errors and Appeals held that the consideration of the question of an implied power of sale "must be approached upon the assumption that the rule of interpretation is that the implication must be clear from the terms of the entire will, and it must be found that some duty has been imposed by the testator upon the executor which necessarily carries with it a power of sale in order to enable him to perform the duty. * * * Lindley v. O'Reilly, 50 N. J. Law, 649 [15 Atl. 379, 1 L. R. A. 79, 7 Am. St. Rep. 802]," and he adds, "If a sale of the real estate is necessary to carry out the purposes of the testator, the power to make the sale will be given by implication, as otherwise the intention of the testator might be defeated."
It is further insisted by complainant that testator's intention regarding the conversion of his real estate into money is apparent from the language used by him in the fourth clause of the will in which he directs the shares of his estate "to be paid over" to his beneficiaries when of age; and it is claimed that this expression is only applicable to the transfer of money. This direction to pay is used, however, in connection with and follows the words "I give, devise and bequeath the equal one-fourth part of all my property, real and personal," etc., and in construing a somewhat similar expression, the Court of Errors and Appeals in Chandler v. Thompson, supra, held that the direction "'that it shall not be paid over or delivered * * * until he attains his majority,' is not appropriate to and does not apply to real estate."
From the will it appears there is to be a division of both the real and personal property, and not of the proceeds of the sale of the real estate; that there is no devise of the real estate to the executors in trust, or otherwise; that aside from the trust fund and the surplus of personal property, the executors are given no power over the investment of any part of the estate, and no duty has been imposed by the testator upon his executors with respect to the division of his real estate. The testator properly uses the word "devise" in connection with the disposition of his real estate, and it is to be presumed that this word was used by him in its appropriate technical sense. Chandler v. Thompson, supra. And I find, as Vice Chancellor Stevens did in Smalley v. Smalley, 54 N. J. Eq. 591, 35 Atl. 374, in which the facts were quite like those before me, "there is absolutely no indication * * * on testator's part to put it in the power of his executors to change the nature of his property before it reaches its destination."
The mere fact that it may be more convenient for complainant to obtain her shareof the real estate by its sale and conversion, than it would be by partition, is not sufficient to create an implied power of sale.
A decree will be advised that the bill be dismissed.