Opinion
07-16-1901
HADLEY et al. v. SIMMONS et al.
John B. Humphreys and Preston Stevenson, for complainants. W. B. Gourley, for defendants.
Bill between Mary Eliza Hadley and others and Henrietta Simmons and others for the construction of a will. Will construed.
John B. Humphreys and Preston Stevenson, for complainants.
W. B. Gourley, for defendants.
STEVENS, V. C. Henry P. Simmons, a resident of Passaic, died in 1896. At the time of his death, and for many years previously, he had owned the farm on which he lived. It lay within the limits of the town, and was available for division into lots. He had made a map of it in 1875, and again in 1891, and again in 1894. On each map he had indicated streets in general conformity with the city map, and he had plotted lots thereon. He had never dedicated or opened these contemplated streets or sold any of these lots, and the land was at the time of his death inclosed by fences as a farm. Among the streets so indicated was Henry street, which was plotted as running into Main street just south of his residence, near the Erie Railroad depot. Shortly after the preparation of the map of 1894 he made a will, in which he provided as follows: "If my said daughter Henrietta shall in writing request my said trustees so to do, said trustees shall erect a comfortable dwelling house at a cost not exceeding three thousand dollars, to be located upon two lots of land fronting on Henry street, to be selected by her, near my present residence, which said house shall be erected and completed, and the said lots properly graded and inclosed, at the expense of my general estate, and the said premises, when so graded and inclosed, shall and may be occupied by my daughter Henrietta free of rent during her natural life." In September, 1899, Henrietta requested the trustees, in writing, to erect such a house on two lots, designated as 72 and 73. The trustees objected to this, on the groundthat the Jots did not front on Henry street, and, Miss Simmons insisting that they did, this bill was filed to settle the controversy, and to determine the character of the estate or interest which she will have in the house when built.
I think the lots designated by Miss Simmons do not front on Henry street, within the meaning of the testator's will. On the map of 1894 lot 73 is part of a larger lot, fronting on Main street On the map of 1891 there is no numbered lot in this portion of the map. On the earlier map lot 73 is part of a lot fronting on Main street, and part of three or more lots fronting on Henry street. The will does not refer to any map. Each of them differs from the others, and there is nothing in the will to indicate that even the last was a declaration of testator's final intentions in the matter. No land, as far as appears, was sold with reference to any of these maps. What testator seems to have intended was that his daughter should have the privilege of designating two lots, as they might be eventually and definitely laid out, either by himself or his trustees. Lot 72 fronts on Henry street as laid out on the map of 1894, but there is also indicated on that map, by dotted lines, the continuation of a possible street (Garden street), which stopped short of Mr. Simmons' line, and did not then run into Main street, as it now does. It is shown by the evidence that Garden street has become one of the main business thoroughfares of the town, and that lots fronting on it have acquired a much greater value than lands on a side street like Henry street. The trustees desire to lay out lots 100 feet deep on this street if they do, the trust will be benefited.
The will provides (paragraph 10, § 3) that the lands lying in the Second ward shall be kept intact as a separate estate as long as possible. It, however, authorizes the trustees (section 7) to improve and develop them. In section 1 there is a general reference to a part of testator's property as having been laid out into city lots, and to a part as not having been laid out, but whether he considers this part as laid out or not does not appear. The trustees have the power to lay out the property into lots, at least where testator himself has not done so by some decisive act There is nothing in the will or the evidence to indicate finality at the point in controversy, and so I think that the trustees may, in the exercise of a reasonable discretion, lay out lots so as to front on Garden street.
It is argued on behalf of the trustees that. in view of the second subdivision of the tenth paragraph of the will, Miss Simmons' choice is restricted to lots on the north side of Henry street it is possible that such may have been the Intention, but I cannot say that the will so declares. The trusts therein mentioned may be carried into effect as well with the house built as without it. The word "unimproved" is merely descriptive of the lots as they then were.
As to the interest which Miss Simmons will have in the house when built, it seems to me that it was intended for her personal occupancy. Her father was providing a "comfortable" dwelling for her, and she was to "occupy" it "free of rent." All these characterizations look to her personal use of the very house itself. He had in other parts of his will made pecuniary provision for her support.