Opinion
11-08-1905
NORRIS v. BEARDSLEY et al.
George S. Hilton, for complainant. Abram Klenert, for defendants.
Bill by William I. Norris, as administrator with the will annexed of Emeline A. Doremus, deceased, against Benajah M. Beardsley and others, for construction of the will. Dismissed.
George S. Hilton, for complainant. Abram Klenert, for defendants.
STEVENSON, V. C. The bill is filed by the administrator with the will annexed of Mrs. Emeline A. Doremus, deceased, for a construction of the following clause of Mrs. Doremus' will: "After the payment of my just debts and funeral expenses I give, bequeath, and devise all my property, both real and personal, wheresoever situate and whatever the same may be, to my husband Cornelius Doremus of the city of Paterson, in the county of Passaic and state of New Jersey, to him and his heirs, forever." The will was executed in January, 1899. Mrs. Doremus died in November, 1904. Her husband died about April 1, 1899. The question submitted is whether the residuary gift to the husband lapsed or passed to any persons who are described in the language of the will above quoted as "his heirs." The heirs and next of kin of both Mr. and Mrs. Doremus are made defendants. The only answer filed is by Mrs. Doremus' next of kin. The bill has been taken as confessed against the other defendants, and it does not appear that any of the heirs and next of kin of Mr. Doremus have in any way come forward with a claim to the residuary estate of Mrs. Doremus.
The answer admits the facts alleged in the bill, but denies that there is any "occasion for uncertainty or doubt under the provisions of the said will" as to the disposition of Mrs. Doremus' estate, and sets up that, upon the death of Cornelius Doremus in the lifetime of the testatrix, the bequest and devise to him lapsed, and that therefore as to her residuary estate Mrs. Doremus died intestate. The case of Zabriskie v. Huyler (1901) 62 N. J. Eq. 697, 51 Atl. 197, affirmed, 64 N. J. Eq. 794, 56 Atl. 1133, Is cited to sustain these legal propositions. The answer does not ask that a decree be made establishing the rights of the heirs and next of kin of Mrs. Doremus, but prays that the bill be dismissed. The issue is thus raised whether a case is presented of such doubt and uncertainty as to warrant the complainant as trustee in seeking the advice and direction of the court. The general rule is well settled that "when the duty of a trustee is a matter of doubt, it is his undoubted right to ask and receive the aid and direction of a court of equity in the execution of his trust." Kearney v. MaComb (1863) 16 N. J. Eq. 189; Atty. Gen. v. Moore's Ex'rs (1868) 19 N. J. Eq. 503; 2 Pom. Eq. § 1064; 2 Perry on Trusts, § 476a. But a trustee has no right to place himself under the direction of the court where the case is clear, where there is no reasonable doubt as to his duty. Ex'rs of Vanness v. Jacobus (1864) 17 N. J. Eq. 153; Griggs v. Veghte (1890) 47 N. J. Eq. 179, 181, 19 Atl. 86; 28 Am. & Eng. Ency. (2d Ed.) 1052; 2 Perry on Trusts, § 476a, note 1. What degree of doubt will warrant an application to the court is evidently beyond definition. Each case must to a large extent stand on its own circumstances. It may be conceded that the reasonableness of the doubt or question is not necessarily to be tested by the mind of the court to whom the trustee applies for protectiveinstructions. The complainant in this case may have a right to protection against future litigations based on views of the law or facts, which to this court may now seem entirely without foundation, or based upon a state of facts altogether different from that which now is presented, or which the complainant had before him when he filed his bill.
I am not, however, obliged to determine whether the application to this court in this case, which is made with technical skill and in undoubted good faith, does or does not present a reasonably doubtful question within the meaning of the above-stated rule. Assuming that such a question is presented, it cannot at present be entertained in relation to any part of the estate of Mrs. Doremus exhibited in the bill or proofs. The residuary estate in question consists of three classes of assets. In the first place, Mrs. Doremus died seised of two houses and lots in the city of Paterson. The bill prays that the residuary clause may be construed as a devise of this land. It is, however, well settled that a court of equity under its jurisdiction to construe wills will not entertain a bill to construe an ambiguous devise of land where no equitable estate or interest is involved; but the matter in dispute is between rival claimants under conflicting legal titles. Torry et al., Executors, v. Torrey (1897) 55 N. J. Eq. 410, 36 Atl. 1084; 2 Pom. Eq. § 1155; 2 Perry on Trusts, § 476a. If the rule were otherwise, such a bill could not be entertained on behalf of an executor who is charged with no duty whatever in respect of the land in dispute, but would have to be filed by one of the claimants. In the second place, it appears that according to the bill of complaint Mrs. Doremus "left in her name and possession only a small amount of personal property, an inventory of which has not been filed." It does not appear that the administrator has obtained possession or can obtain possession of any of this personal property, or that the value of it is sufficient to enable the administrator to invoke the jurisdiction of this court. Counsel for the complainant concedes that the bill cannot be sustained in order to have directions given to the complainant in regard to the disposition of this "small amount of personal property." He states in his brief as the proofs indicate, that Mrs. Doremus "did not have any personal property of any account in her possession" at the time of her decease. If the administrator should obtain possession of this personal property of small but unknown value, it does not appear that, after the expenses of administration have been paid, there would be anything left for distribution. In the third place, the bill sets forth that Mrs. Doremus at the time of her death was entitled to a share of the proceeds of certain lands which will be sold under the provisions of the will of one Martha Doremus, deceased, and also a share of the proceeds of certain other lands held by a trustee charged with the duty of making sale thereof. Counsel for complainant contends that the case is one of equitable conversion, and that these proceeds of the sale of lands have the status of personal property, and are to be administered as such by the complainant. The bill of complaint alleges that these moneys, when sale of the land shall have been effected, "will come" to the complainant's hauds, and prays for directions as to the mode of distribution. It is a fatal objection to the granting of this request that the land has not been sold, and the funds are not yet in the complainant's hands, so that he is not at present charged with any duty whatever with reference to their distribution, and may never be charged with any such duty. Griggs v. Veghte, 47 N. J. Eq. 180, 19 Atl. 867; Traphagen v. Levy (1889) 45 N. J. Eq. 448, 453, 18 Atl. 222; May v. May (1890) 167 U. S. 310, 17 Sup. Ct. 824, 42 L. Ed. 179; Bullard v. Chandler (1889) 149 Mass. 532, 21 N. E. 951, 5 L. R. A. 104; White v. Mass. Inst. of Tech. (1898) 171 Mass. 84, 97, 50 N. E. 512; 28 Am. & Eucy. (2d Ed.) 1052, and notes.
The slightest reflection will show that any one of several events or series of events may happen which will prevent the complainant from receiving any of the proceeds of the sale of either of these tracts of land, or from receiving proceeds of sufficient amount to warrant an application to this court for directions as to their distribution. Moreover, if it were certain that the complainant in the future will have possession of these moneys the parties entitled to receive them, who therefore should be brought in to litigate all questions concerning them, cannot now be ascertained. The fact that the right to receive the money when collected is vested does not affect the rule that the litigation to settle doubtful questions must be postponed until the defendants, the rival claimants, or possible claimants, have before them in the possession of the trustee the fund itself, and are thus assured that the successful party will actually enjoy the fruits of the litigation. In the case of Tuttle v. Woolworth (1901) 62 N. J. Eq. 532, 50 Atl. 445, an executor and trustee filed a bill for directions inter alia in regard to the disposition of the proceeds of real estate which he himself held in trust to sell. The question in that case as in this was as to which of certain parties defendant the proceeds were payable under the terms of the trust. Vice Chancellor Emery, in declining to give any instructions, laid down the rule applicable to the situation as follows: "As the surviving executor has not yet sold the house and lot, it would be premature to decide upon the disposition of the proceeds of sale. and the executor is not entitled to the protection of the court upon this disposition, until the proceeds of sale are on hand ready to distribute, and the persons then entitledto or claiming the funds are in court." This same rule applies with greater force to the present case, because the existence of a fund to divide depends in part, not upon the action of the complainant, but upon the action of strangers to this cause.
Inasmuch as the complainant is under no present duty in respect of winch he is entitled to directions from this court, the bill must be dismissed.