Opinion
10-07-1892
BRADWAY v. HOLMES.
E. S. Fogg and William T. Hilliard, for complainant. C. H. Sinnickson, for defendant.
Bill by William Bradway, administrator d. b. n. c. t. a. of David F. Bradway, deceased, against John Holmes, administrator of Harriet Bradway, deceased, who was the widow and executrix of David F., to recover money standing on her death to her individual credit in bank, which was alleged to belong to testator's estate. Amendment of bill permitted.
E. S. Fogg and William T. Hilliard, for complainant.
C. H. Sinnickson, for defendant.
PITNEY, V. C. The bill is filed by an administrator de bonis non cum testamento aunexo against the administrator of the executrix named in the will. Its object is to procure a decree that a sum of money ($1,236.27) which at the death of the executrix stood to her Individual credit in bank was, in fact, the money of the estate of the testator; and it prays that it may be so declared, and that the defendant may account, etc. Before entering upon the taking of evidence, two preliminary questions were raised and argued, and the taking of testimony postponed until they should be considered and settled. The first question is one of construction of the will of the testator, and the second one involves the right of the present complainant to maintain this action. The testator was David F. Bradway, of the county of Salem, and he died on the 1st of August, 1889, and by his will, which was probated on the 16th of August, 1889, he provided, among other things, as follows: "Third. I give and bequeath unto my beloved wife, Harriet Bradway, the rest and residue of my personal property, and the issues and profits of all my real estate, for her maintenance so long as she shall live, with power to sell and dispose of so much of my personal property or real estate as in her judgment may be necessary for her comfortable support and maintenance, and apply the proceeds for her support and maintenance as aforesaid. Fourth. At the death of my said wife, 1 give and bequeath the rest and residue of my estate remaining in her hands undisposed of, both real and personal, her debts and funeral expenses first being defrayed therefrom, to Mary E. Matts, Ella Bradway, William Bradway, and Burt Kelly, above named, in equal portions, share and share alike: provided, if the said Burt Kelly shall have died without issue before my said wife, his share shall lapse, and the whole surplusage go to the other three remaining legatees above named." And by his will he appointed the defendant's intestate, Harriet Bradway, his wife, sole executrix. She proved the will, possessed herself of the estate and died before accounting. July 9, 1890.
The contention of the defendant is that the gift to the wife was, in effect', a gift of an absolute estate, and counsel relied in support of that position on Rodenfels v. Schumann, 45 N. J. Eq. 386, 17 Atl. Rep. 688, and the principle there established. The principle relied upon is this: that where an estate is given to a person generally or indefinitely, with an unlimited power of disposition, with a bequest or devise over of what may remain after the death of the first taker, it carries a fee, and the gift over is void; the only exception to this rule being where the testator gives to the first taker an estate for life only by certain express words, and an nexes to it a power of disposal. The bequest in Rodenfels v. Schumann was this: "That all my property, both real and personal, shall be for the sole use and benefit of my wife, Julianna, After my decease, and, in the event of her death, then what shall remain to be disposed of in the following manner, namely," etc.; and it was held that she took an absolute estate because her power of disposition during her lifetime was unlimited. The difference between that will and this is that here the power of disposition is limited, as to the principal of the estate, to so much as may be necessary for her comfortable support and maintenance; and language is used which might well be construed to limit it to an estate for life by express words, viz.: "The rest and residue of my personal property and the issues and profits of all my real estate for her maintenance so long as she shall live." Such limitation was held by me in Cox v. Wills, 49 N. J. Eq. —, 22 Atl. Rep. 794, to reduce the estate to one for life. There the testator, in disposing of the residue of the estate, used this language: "I do hereby give and bequeath unto my beloved wife, Lydia H. Leeds, to be paid to her as soon as conveniently can be, after my said debts and legacies are paid and satisfied, which said lastmentioned legacy I give my said wife in good faith, believing that she will makea will, and thereby distribute so much of the last-named legacy among my near relatives as she may not use for comfortable maintenance." It seems to be impossible to distinguish that case from this. I hold, therefore, that the estate bequeathed by the will in question was one for life only.
The next point, viz., as to the right of this complainant to maintain this suit, is a more serious one. It was held by Chancellor Zabriskie In Carrick v. Carrick, 23 N. J. Eq. 364, upon a full examination of the authorities, that an administrator de bonis non with the will annexed cannot maintain an action against the personal representative of a deceased executor to recover from him such part of the estate as he has converted into money, and that his right as administrator de bonis non, etc., is limited to possessing himself of so much of the testator's estate as remains in specie. That case would seem to be entirely decisive of this. There is a subsequent case of Lindsley v. Personette, decided by Chancellor Runyon, and reported in 35 N. J. Eq. 355, which seems to conflict with it. There an administrator de bonis non cum testamen to annexo filed a bill against the administratrix of the surviving executor for an account of the estate. The bill prayed other matters of relief, and upon a demurrer the chancellor held that the demurrer as to the other matters of relief was well taken, and, after so holding, he closes his opinion thus: "But beyond this the complainant has a right to the account which he seeks of the administration of the estates of his testator by Stephen Personette, his executor, and so far he is entitled to relief." He cites no authorities and gives no reasons for that conclusion. It would seem to be in direct antagonism to the case of Carrick v. Carrick. But in Lindsley v. Personette the trust established by the will had not been fully carried out. It was in favor of the testator's widow, and she was still alive, and entitled to a comfortable support and maintenance out of his estate, and the object oF the bill was to obtain such support. That circumstance may distinguish it from the previous case. Be that as it may, I cannot think that Chancellor Runyon intended to overrule Carrick v. Carrick, which was decided after full consideration of the authorities, and has been mentioned with approval by Chief Justice Beasley in McDonald v. O'Connell, 39 N. J. Law, 317. Speaking of an administrator de bonis non, at page 320, he says: "With regard to these latter class of officers it has been many times decided that they cannot call on the representative of their predecessor for the proceeds of property converted into money, but only for assets existing in specie;" citing Brownlee v. Lock wood, 20 N. J. Eq. 239, and Carrick v. Carrick, 23 N. J. Eq. 364. The defendant is liable to be called upon to account by the beneficiaries mentioned in the fourth item of the will here in question, and any payment which ho should make to the complainant by virtue of a decree herein will be no protection to him against an action by those persons. Under these circumstances, I feel constrained to hold that the complainant cannot maintain his action in his representative capacity. But he is also one of the beneficiaries mentioned in the will, and, as such, is entitled to the very relief prayed for in his bill. I think the bill is so framed that it may be amended so as to make it the bill of the complainant as an individual, and he may join therein the other beneficiaries if they are so minded, or he may make them parties defendant, as he shall be advised. 1 Story, Eq. PI. § 89. The amendment will be permitted, without costs. I will advise a decree accordingly.