Opinion
09-18-1893
TOMKINS v. MILLER.
Bill by Cornelius L. Tomkins against Mary E. Miller for a partition of land. Dismissed. S. H. Pennington, Jr., for complainant.
Bill by Cornelius L. Tomkins against Mary E. Miller for a partition of land. Dismissed.
S. H. Pennington, Jr., for complainant.
BIRD, V. C. This bill is filed for the partition of lands of which the testator, David C. Tomkins, died seised. The testator, in and by his will, first made provisions for his wife, and then declared: "All the rest, residue, and remainder of my estate, real and personal, whatsoever and wheresoever, I give, devise, and bequeath unto my executor hereinafter named, in trust nevertheless, and to and for the following uses and purposes, and no other, to wit: That my said executor shall invest three thousand dollars, part of such residue and remainder, by depositing the same in the Newark Savings Institution, or loaning the same upon bond, secured by first mortgage of an upon real estate, * * * as my wife shall direct, and pay over the interest of the said sum of three thousand dollars to my said wife yearly and every year during her natural life, at such times as she may desire the same; also that my said executors shall invest the further sum of two thousand dollars by loaning the same upon bond secured by first mortgage of and upon real estate worth at least four thousand dollars, * * * pay over the interest of one thousand dollars to my daughter-in-law Harriet, wife of my said deceased son Charles G. Tomkins, now wife of William Young, * * * for the support and maintenance of the children of my said deceased son Charles G. Tomkins, and to pay over the interest of the other one thousand dollars to my daughter-in-law Julia, widow of my deceased son David A. Tomkins, * * * for the support and maintenance of the children of my said deceased son David A. Tomkins. * * * One thousand dollars, part of the said sum of two thousand dollars, I order my said executors to distribute to and among the children of my said deceased son Charles G. Tomkins, in manner following; that is to say, as they shall severally become of the age of 23 years. My said executors shall pay the one so arriving at the age of 23 years an equal part or share of said sum of one thousand dollars, until the whole sum is thus distributed, the interest of the balance to be paid over as aforesaid, and until the whole sum is distributed. The other one thousand dollars I order my said executors to distribute among the children of my said other deceased son, David A. Tomkins, in the same manner as to the children of my deceased son Charles G. Tomkins, and the intersst to be paid over as aforesaid, until the whole lastmentioned sum of one thousand dollars is distributed as aforesaid. * * * In case the said Harriet or Julia, or either of them, should die before the said children all arrive to the age of 23 years, then I order and direct my said executors to pay over the interest of said sums of one thousand dollars each, or the balance or balances thereof, for the support and maintenance of such of said children as may not have attained to the age of 23 years, until the whole of said sum of one thousand dollars each shall be distributed as aforesaid; and upon the further trust that my said executors shall also safely invest the sum of three hundred dollars until the death of my said wife, and pay over the interest of said sum of three hundred dollars to my children, as I hereinafter provide for the payment of other interest to them; and at the death of my said wife I order and direct my said executors to pay over said sum of three hundred dollars to my granddaughter Mary Baldwin; * * * and upon the further trust that my said executor shall take care of, manage, and invest the balance of the said rest, residue, and remainder of my said estate in the best possible manner, and to the best possible advantage, and pay over semiannually the interest thereof to my three children Cornelius T. Tomkins, Henrietta Johnson, wife of Joseph Johnson, and William H. Tomkins, share and share alike, during their natural lives." He forbids the executors to pay over any money to any of the legatees which are of "wicked, dissolute, or depraved" character.
I cannot see my way clear to advise a decree directing the partition or sale of these lands. The master reports that it cannot be divided without practically destroying the interests of the respective parties. I cannot advise such a decree, because it seems to me that in so doing one or more of the purposes of the testator might be thwarted.
This fact so appearing to my mind, and there being infants in the case, for whom this court must assume the responsibility of acting, I cannot take such responsibility. There is nothing in the case to warrant me in believing that it would prove beneficial to them. Without such evidence, the court would not be justified in taking the step prayed for. There can be no doubt but, as the master suggests, the doctrine of equitable conversion covers this case. This, to my mind, is so clear that authorities need not be cited. The testator, as was his right, saw fit to give the real estate of which he died possessed this character; and I am sure that no court without the most satisfactory conditions would undertake to give any other character to it. It is true that a sale made in partition may pass the title as well as a sale made by the executor or administrator with the will annexed, but whether it will or not is not the question in this case. The question is not only whether the court has the power or not in behalf of the infants, and to look after them in conjunction with those who are acting sui juris, and determine to take this property as real, rather than personal, but as intimated whether it would be wise or prudent in the interests of the infants so to do. It will add to the expenses, and thereby increase the burdens, for there must be a trustee, according to the tenor and provisions of the will, to take the funds, to invest and to distribute them; otherwise the court will in more than one particular not only alter, but make, a will for the testator. Upon the question of the propriety of the court assuming to elect for the infants in this case, my judgment is that the court ought not.
But it is insisted, in the hope of having a decree according to the prayer of the bill, that there is no power of sale given by the will, and that the phrases to "Invest" and "to distribute" and the like only have reference to personal estate. By reading the will it will be seen that the testator, after providing for his wife, says "all the rest and residue of my estate, real and personal, whatsoever and wheresoever, I give, devise, and bequeath unto my executor hereinafter named, in trust nevertheless, and to and for the following uses and purposes, and no other." When I reflect that the testator's real estate consisted of a lot 30 feet wide by 100 feet deep, with a dwelling thereon covering 20 feet, and that he made provision for the distribution of his estate among his children and grandchildren, and their shares of the money not going into their possession for many years, and that there is no other direction whatsoever respecting his real estate than that just referred to, it is clear to my mind beyond all controversy that the testator intended the conversion of his real estate into personal by his executor. It could not have been more certain if he had said, "I order and direct my said executor to sell and convey my said house and lot" He gives it in trust for the following purposes, then proceeds to name them. In speaking of those purposes he speaks of his estate as money, and nothing else. Every utterance conveys the impression that he is dealing with funds, not with land. He gave his executor the title. That title can only be conveyed by the executor, or a trustee appointed for that purpose, according to the provisions of the statute. This view is consistent with all the authorities. The most recent expression of opinion in our courts is that of Cruikshaak v. Parker, 26 Atl. Rep. 925. I do not mean to say that, if all the legatees were of age, and elected to take the land instead of money, they might not do so. I am now only addressing myself to the consideration of the power or ability of the executor under the will to convert this land into money for the purposes of the will. Under the authority referred to, as well as under many others which may be cited, I think there is no difficulty in the way; and since this court is called upon to act in behalf of infants, it is bound by every consideration to bear in mind the costs of procedure. If the court should determine to decree a sale in this case. there would perhaps be several hundred dollars of costs, expenses, and counsel fees, without any abatement of costs in way of administration of the fund by the administrator with the will annexed or other trustee, except the mere costs of advertising, were he so to advertise. The executor or administrator with the will annexed will be entitled to the same compensation for his services, because he receives and distributes the funds, whether he makes the sale as such or it be made by a master, under a decree of this court, in this cause. Hence, since it is the duty of the court to look after the interests of the infants, and since there has been nothing presented to satisfy the court that their interests will be in any manner benefited by this proceeding, and since it does very clearly appear to my mind that their portion in this estate will not only be burdened or diminished if the prayer of the bill be granted, I find myself constrained to advise that the bill in this case be dismissed, with costs.