Opinion
12-16-1927
SMITH v. MOONEY.
Edward M. Oolie, of Newark, for complainant. R. Arthur Heller, of Newark, for defendant.
(Syllabus by the Court.)
Suit by Thomas J. Smith, surviving executor of Mary Ann Smith, deceased, against Frederick H. Mooney, for specific performance. Decree for complainant.
Edward M. Oolie, of Newark, for complainant.
R. Arthur Heller, of Newark, for defendant.
BACKES, Vice Chancellor. The surviving executor and trustee under the last will and testament of Mary Ann Smith, deceased, entered into a written contract with the defendant to sell him a piece of land belonging to the estate. The bill is filed to compel the defendant to perform his contract, and he is willing to do so, but contends that the complainant cannot give him a marketable title, asserting that the executor has not the power to sell. That depends upon the true construction of the will. The testatrix, after some specific bequests and devises, by the fifth clause of her will, which is too long to set out in full, devised and bequeathed all the rest, residue, and remainder of her property to her executors upon trust to hold the principal of her estate during the lifetime of her six children and upon the death of the survivor to divide it as hereinafter stated. In the meantime the income was to be paid to the children and one Catherine Burke, in equal shares, the children of any deceased child to take the parent's share of the income, with discretionary right in the trustee to withhold the income, or otherwise dispose of it, not now important to state. Upon the death of all the children the will directs that the principal of the estate, and accumulations of income, if any, be divided among the issue of the testatrix's six sons and Catherine Burke. The share to each is given in substantially, if not precisely, the same language as follows:
"One share of the principal of my estate to the children of my son Philip Smith, living at the time herein fixed for distribution, to be equally divided among them, the issue of any of his deceased children to take the parent's share, in case all his children shall be then dead and the issue of none be then living, then his share to be divided equally among my then surviving grandchildren."
The testatrix died possessed of considerable personal property and many houses and vacant lots of land in and about Newark, and, if distribution of the estate were made at this time, some of the pro rata shares would be as low as a one seventy-second of the whole.
There are, it is true, no words expressly authorizing the sale of the real estate, but full effect could not be given to the testatrix's direction to divide the estate—the real and personal property as a unit—at the time fixed by her for its distribution, unless there was a conversion of the realty. The testatrix obviously contemplated that the division should be in money shares, and to that end that the real estate should be sold. The power of sale in the trustee is clearly implied. This view is supported by the cases in this state construing similar provisions in wills. Executorsof Vanness v. Jacobus, 17 N. J. Eq. 153; Wurts v. Page, 19 N. J. Eq. 366; Haggerty v. Lanterman, 30 N. J. Eq. 37; Belcher v. Belcher, 38 N. J. Eq. 126; Moore v. Wears, 87 N. J. Eq. 459, 100 A. 563.
The complainant can unquestionably convey a marketable title, and a decree that the contract be enforced will be advised.