Summary
In Blundell v. Pope (N. J.) 21 Atl. 456 (Pitney, V. C., 3890), a bequest to testator's wife of "bondsand mortgages or other securities of the value of twenty thousand dollars," and others of like character, were held to be general.
Summary of this case from Blair v. ScribnbrOpinion
10-01-1890
BLUNDELL, et al. v. POPE et al.
George S. Hilton, for complainants. Barkelow, Pennington & Beam, Alexander Elliot. Jr., Zebulon M. Ward, William B. Gourley, Oscar Kern, and Marshall & Weston, for defendants.
Bill by James Blundell and George Hilton, executors, etc., of Samuel Pope, deceased, to obtain the construction of certain portions of the will of Samuel Pope, deceased. The portions upon which the construction of the court was asked are as follows: "Third. I give, devise, and bequeath unto my said wife, Eliza, bonds and mortgages, or other securities, of the value of twenty thousand dollars. Fourth. I give, devise, and bequeath unto my said wife, Eliza, for her sole use and benefit, for and during the term of her natural life, the interest money derived from bonds and mortgages, or other interest-paying securities, of the value of thirty thousand dollars: and, in order that she may receive the same, I do hereby order and direct my executors hereinafter named, or the survivor of them, to select, from the securities belonging to my estate, bonds and mortgages, or other interest-bearing securities, of the value of thirty thousand dollars, and to hold the same until the decease of my said wife, and during her life-time to collect the interest and profits arising therefrom, when due, and pay the same to my said wife." "Eighth. I give, devise, and bequeath unto each one of my four cousins, viz., Mary J. Goble, Jeremiah Van Iderstine, Patience Ferris, and Sarah C. Dorsett, who shall survive me, bonds and mortgages, or other securities, of the value of fifteen thousand dollars. In case any or all of my said cousins depart this life before me, then it is my will that the share such deceased cousin or cousins would receive, if living, shall be and remain part and parcel of my estate, as it is not my intention to make, and I do not make, any bequest to the heirs or next of kin of my cousins above named. Ninth. I give, devise, and bequeath unto my nephew William Pope, for his sole use and benefit for and during the term of his natural life, the interest money derived from bonds and mortgages, or other interest-paying securities, of the value of ten thousand dollars; and, in order that he may receive the same, I do hereby order and direct my executors hereinafter named, or the survivor of them, to select from the securities belonging to my estate bonds and mortgages, or other interest-bearing securities, of the value of ten thousand dollars, and to hold the same until the decease of the said William Pope, and during his lifetime to collect the interest and profits arising therefrom, when due, and pay the same to the said William Pope." "Thirteenth. I give, devise, and bequeath unto each of the three daughters of John Varick, viz., Catharine Moore, Hester Varick, and Maria Healey, who may be living at the time of my decease,bonds and mortgages, or other securities, of the value of ten thousand dollars. Fourteenth. I give, devise, and bequeath unto Jane Harley, if she be living at the time of my decease, bonds and mortgages, or other securities, of the value of three thousand dollars." "Eighteenth. After the death of my said wife, Eliza, I give, devise, and bequeath unto such person or persons as may be appointed by the chancellor, or any competent court of this state, trustee or trustees of Samuel Vogt and Effie Vogt, (minor children of my adopted daughter, Ida Vogt, now deceased,) in place and stead of my said wife, Eliza, and to their successors in the trust, * * * ail moneys, bonds, mortgages, or other securities undisposed of, belonging to my estate, or which at that time shall have from any cause reverted to my estate, or which, upon the death of said wife, will again become part and parcel of my estate." Complainants also asked instructions regarding the manner of paying the compensation which would accrue to the trustee or trustees under the eighteenth section, above quoted.
George S. Hilton, for complainants.
Barkelow, Pennington & Beam, Alexander Elliot. Jr., Zebulon M. Ward, William B. Gourley, Oscar Kern, and Marshall & Weston, for defendants.
PITNEY, V. C. 1. The legacies provided for in the fourth and ninth clauses are specific. The testator, at the time of making the will, had in hand several times their aggregate in bonds and mortgages, and could be reasonably certain that enough of them would remain unpaid at his death, or would be replaced by new investments, to answer for the purpose of satisfying these legacies, and he clearly provides for a choice out of these securities. Richards v. Richards, 9 Price, 226; Fontaine v. Tyler, Id. 98; Wallace v. Wallace, 23 N. H. 149; Everitt v. Lane, 2 Ired. Eq. 548. The bonds and mortgages to be chosen by the executors will carry the interest from testator's death, which will go to the life-tenants.
2. The legacies given by the 3d, 8th, 13th, and 14th clauses are general, being distinguished from those in the 4th and 9th clauses by the context. They are also distinguishable from the John R. Thompson will by the circumstance that (a) Mr. Pope had not, at the date of the will, enough of the securities described to satis fy the legacies given, and (ft) he could not, as in Thomson's Case, be reasonably sure of having them at his death. Bonds and mortgages are liable to be paid off, and are, in a sense and measure, beyond the power of the owner to control. Thompson's stocks and securities were permanent, and not changeable at the pleasure of others.
16 N. J. Eq. 218.
3. These legacies are payable in bonds and mortgages, or good securities, or in cash, if legatees are willing to accept same. Executors should not force upon any legatee any doubtful asset, but should realize upon such. If there is a deficiency of assets, these legacies will abate ratably. They bear interest after one year.
4. The bill is not framed to raise the question as to the right to charge any deficiency of personalty to pay legacies upon the real estate not devised by the will, and no decree will be made on that subject.
5. If there should be a surplus of personal assets, it goes, clearly, under the eighteenth clause, to the trustees of the Vogt infants after the death of the widow. In the mean time it must be retained by the executors.
6. This court does not give directions upon cases before they arise; hence none will be given as to commissions. The present case, however, is clearly within Pitney v. Everson, 42 N. J. Eq. 361, 7 Atl. Rep. 860; but no compensation for future services can now be made, for those services may not be rendered by the present executors; and I do not see upon what principle the future cost of maintaining the several trust-funds can be cast upon the residue. On the contrary, I think each fund must bear its own burden.
7. There was no bequest to Patience Ferris. It was to her if she survived testator. I construe the will as if her name had not been mentioned.
8. Costs of all parties out of estate, with counsel fee to each to be fixed.