Opinion
02-01-1895
COWELL v. HICKS et al.
William H. Morrow, for Isador Hicks. George M. Shipman, for children of George M. Hicks.
Action by Diana Cowell against Edward Hicks and others for the partition of land. Isador Hicks claimed a portion of the proceeds of the sale under a mortgage made by George M. Hicks, deceased, and the latter's heirs contest his right to any portion of such proceeds. Decree made that the amount due on the mortgage be paid.
Before and on the 10th of April, 1838, John Hicks, of the county of Warren, was the owner of a farm there situate. He and his wife, Keturah, had four children, of whom Johu Hicks, 2d, was one. On that day John Hicks made a conveyance of the farm to John Hamlin and William Hamlin (in the premises of the deed described as "trustees in trust for and in behalf of Keturah Hicks, wife of John Hicks, aforesaid, and her heirs"), by which he conveyed to the said trustees the farm in question, with a habendum as follows: "To have and to hold the above described land and premises, with the appurtenances, unto the said party of the second part, in trust for the said Keturah Hicks and her heirs, as follows: The said trustees to pay the rent and income that they shall receive from said premises annually for the maintenance of the said Keturah Hicks and her children, and at the decease of the said Keturah Hicks to release and convey, by lawful conveyances, unto the children and heirs of the said Keturah Hicks, the above-described land and premises." Keturah Hicks survived her husband, both the trustees, and her son John. The latter left two children, of whom George M. Hicks was one. George M. Hicks, after his father's death, mortgaged his interest to Isador Hicks, and died in the lifetime of his grandmother, Keturah Hicks. This suit was instituted by Diana Cowell, one of the children of Keturah, for partition of the premises, and such proceedings were had that the premises were sold, and the one-eighth share which would have come to George M. Hicks, if he had survived his grandmother, was retained in court to answer the demand of Isador Hicks under her mortgage; and the question now to be determined is whether or not Isador Hicks is to be paid the amount of her mortgage, out of the funds so in court, before the children of George M. Hicks, who claim it.
William H. Morrow, for Isador Hicks.
George M. Shipman, for children of George M. Hicks.
PITNEY, V. C. (after stating the facts). 1. I am of the opinion that the word "children" is the controlling word in the statement of the trust above set forth, and that the word "heirs," where associated with it, means nothing more than "children," and does not mean such persons as would be Mrs. Hicks' heirs at law at her decease. Bowers v. Porter, 4 Pick. 198. The result, however, would be the same if the word "children" had not been used. Demarest v. Hooper, 22 N. J. Law, 611.
2. Giving the word "heirs" the force of "children" makes it a word of purchase, and not of limitation, and takes the case out of the rule in Shelley's Case, so that Mrs. Hicks took no more than a mere life interest.
3. Mrs. Hicks' four children, of whom John Hicks, 2d, was one, took a vested estate in fee in remainder in equity, one-fourth to each. On the death of John Hicks, 2d,that estate descended to his heirs at law, of whom George M. Hicks, the mortgagor, was one. Post v. Herbert's Ex'rs, 27 N. J. Eq. 540; Perrine v. Newell, 49 N. J. Eq. 57, 23 Atl. 492; Ferry Co. v. Sisson, 17 N. J. Eq. 475.
4. Such a vested estate in remainder was subject to disposition by common-law conveyance, and consequently passed by the mortgage of George M. Hicks to Isador Hicks, and she is entitled to be paid the amount due her out of the fund in court before the children of George M. Hicks can take any part of it. I will advise a decree as above.