Opinion
08-23-1900
KINGSLAND et al. v. KINGSLAND.
Peter Bentley, for complainants. Joseph Coult, for defendant,
Action by Margaret Kingsland and another against Margaret E. Kingsland as executrix of the estate of Joseph Kingsland, 2d, deceased, to establish a charge on land under the will of Joseph Kingsland. Bill dismissed.
Peter Bentley, for complainants.
Joseph Coult, for defendant,
PITNEY, V. C. The complainants, Margaret and Martha Kingsland, are two of the children and beneficiaries mentioned in the will (dated December 3, 1809) of Joseph Kingsland, 1st, who died April 26, 1878, leaving three daughters and two sons, namely, Richard and Joseph Kingsland, 2d; the latter being the defendant's husband and testator.
The object of the bill is to establish a liability against the defendant individually and as executrix of her husband, and to fasten the same upon the lands of the first testator in the hands of the defendant as executrix of her husband and tenant for life. The basis of the claim is a clause in the will of Joseph Kingsland, 1st, in these words: "I give and bequeath to my two daughters, Margaret and Martha, my homestead where I now reside, comprising my dwelling house, with the barn, garden, and orchard adjoining; also, all my household and kitchen furniture and articles of housekeeping; also, two horses, two of my best carriages, and two cows,— for and during their natural lives. I also give them the use of the stables and carriage house, for the purpose of keeping the said horses and cows, as long as they shall require them; and I hereby direct my two sons, Joseph and Richard, to provide hay and pasture for said horses and cows during the lives of my said daughters, and I hereby charge the real estate hereinafter devised to them with the provision of the same." It will be seen at once that whatever personal liability there may be is one resting upon the two sons, Joseph and Richard, jointly. In the absence of some contract of partition or division of this liability which shall be binding upon both the defendant and the complainants, Richard Kingsland is a necessary party to this suit. As a reason, apparently, for not making him a party, the bill alleges that, after the death of the first Joseph, it was mutually agreed between Richard and Joseph, 2d, that Richard should furnish the pasturage and hay for the two horses, and that Joseph should furnish the hay and pasturage for the two cows, which the complainants owned or possessed. There is no allegation that the complainants assented to and became parties to that agreement, but the allegation is that Richard has performed his part of the agreement to the satisfaction of the complainants. It further alleges that the defendant's testator, Joseph, performed his part of the agreement until the year 1895, when he declined to further perform it, and died in the year 1899 testate of a will of which the defendant is the sole executrix. The defendant, by her answer, denies all knowledge of any such agreement between the two brothers; and as the case is heardon bill and answer, without any proofs whatever, I am unable to see how this defect of parties is cured. But the defendant makes no point based on that ground. The will of Joseph, 2d, after providing for the payment of his debts and funeral expenses, gives, devises, and bequeaths to his wife, the defendant Margaret, the use, enjoyment, and income during her life of all of the residue of his real and personal estate, with power of sale, and to invest and reinvest the principal and the proceeds of sales, and also power to make division of portions of principal and interest among his children if she feels disposed so to do; and at her decease he gives all his estate to his children then living, and the issue of any who may have predeceased him leaving heirs, and appoints his wife sole executrix. No decree can be made which shall bind any lands beyond the lifetime of the defendant without the devisees in remainder being made parties.
Further, there is no direct allegation, which ought to be the basis of judicial action, that any particular tract of land of the first testator remains in the possession of the defendant. The following is all that the bill alleges in that respect: "That said defendant is still possessed of a large tract of land of the property of Joseph Kingsland, deceased." The answer does not help the complainants in this respect. The theory of the bill is that the effect of the above clause in the will is to give the complainants a right of actual pasturage for their horses and cattle on, and the right to gather hay from, the lands of the testator which came to his two sons, Richard and Joseph; and the prayer is that the defendant shall be restrained from preventing complainants pasturing their cows on lands, and from preventing complainants gathering hay on lands. This, presumably, is the ground for coming into this court, and of an application which was made for an injunction based upon affidavits annexed to the bill. This application was not pressed, and the affidavits, of course, will not be considered. I am unable to adopt this view as to the proper remedy, but am of the opinion that, the decree, if any be made, must be for payment of a sum of money annually, which will be sufficient to pay for the pasturage and the hay for two cows, and a declaration that that amount is a standing charge on the lands; and. of course, that decree cannot be enforced without a description of the lands to be affected thereby. These matters show that it is probably impracticable to grant the complainants any relief under the bill as at present framed. But the defendant took no point as to that, and the parties seem to desire the opinion of the court as to the construction of the clause above quoted. Here, again, the court has no help from any statement in the bill or answer as to the circumstances which surrounded the testator at the time of the making of the will or at his death. It is not stated that he had any cows, horses, or carriages. The answer, indeed, does say that Richard and Joseph, the sons, "did furnish hay and pasturage for the two horses and two cows bequeathed to the complainants and selected by them for their use during their lives, and continued to give them the use of the stable and carriage house for the purpose of keeping said horses and cows as long as the said horses and cows taken by the said complainants under the provisions of the said will continued to exist, and that, all the said horses and cows had died and were no longer in existence prior to the year 1895." But there is no allegation that the horses and cows were chosen out of those which the first testator had at the time of his death. The full meaning of the clause in question is not of easy determination. The clear intention of the testator was that the complainants should have the use of two cows and two horses, and hay and pasture for them, during the lifetime of his said daughters. The use of the words "for and during their natural lives," after the gift of the horses, carriages, and cows, and again of the words "during the lives of my said daughters," after the provision for the keep of the animals, puts this beyond debate. Here, again, the age of the daughters at the time of his decease is not given, so that we have not their then probabilities and possibilities of life. But the fact that they are still alive is some proof that their expectation of life was good for many years. The argument of the defendant is that the use of the word "said" before the words "horses and cows," in the clause, confines the provision for keep to the identical horses and cows given by the testator, and at the death of those horses and cows the liability ceased. I am unable to yield to that argument. It assumes that the testator must have entertained the notion that his daughters, in the ordinary course of human affairs, would not outlive the domestic animals which they might acquire under his will. This is contrary to common knowledge. Assuming, as we must, that the complainants were quite young at the date of the making of the will, in 18(39, I am unable to infer that the testator at that time supposed that after allowing for his own probable life his daughters would not live longer than the horses and cows which they would receive under his will. Again, this argument of the defendant assumes that the horses and cows so given were specific legacies of horses and cows to be chosen out of testator's own stock. There is nothing in the pleadings to show that the testator owned any horses or cows at the time of his death, or that, if he did own any, the horses and cows of which the complainants became possessed were chosen by them from the stock which the testator had at the time of his death. But, if that fact did appear, it seems to me that, under all the authorities defining specific bequests, this bequest of horses and cows cannot be held to be specific.It will be observed that the usual earmarks which were relied upon in the early authorities to render bequests of chattels of this character specific are wanting here as to the horses and cows. We do not find the adjective "my," or other word of distinction, prefixed to "horses" and "cows," as "my horses," and "my cows," while in the same gift the word "my" is applied to carriages. The words are "two horses and two cows," not "two of my horses and two of my cows." This omission in the case of the horses and cows in the same sentence in which it is used in connection with "carriages" is significant.
I do not propose to go into the authorities on this subject. The older ones will be found collected in Chancellor Green's opinion in Norris v. Thomson's Ex'rs, 16 N. J. Eq. 218, at pages 221, 222; in 1 Rop. Leg. p. *191; and 2 Williams, Ex'rs (Rand. & T. Ed. 1895) p. 436. It is true that the decree made by Chancellor Green in Norris v. Thomson's Ex'rs was reversed on appeal, under the peculiar facts of that case; but the authorities cited by the chancellor, and his definition of a specific bequest, were not impugned. Among the later definitions of a specific bequest is one by Jessel, M. R., in Bothamley v. Sherson, L. R. 20 Eq. 304, at page 308, where many later cases are cited. And later, in Robertson v. Broadbent, 8 App. Cas. 812, at page 815, Lord Selborne defined a specific legacy as follows: "Something which a testator, identifying it by a sufficient description, and manifesting an intention that it should be enjoyed in the state and condition indicated by that description, separates, in favor of a particular legatee, from the general mass of his personal estate." To the same effect is the definition given in Giles v. Melsom, L. R. 6 H. L. 24.
I am of the opinion, then, that the bequest of the horses and cows was not a specific bequest, but was one which gave the complainants a right to have two good horses and two good cows purchased for them with money of the estate, in the absence of any held by the testator at his death answering that description, and that, in using the word "said" in connection with the horses and cows, the testator did not have in mind any particular horses and cows which he might own at the time of his death, but merely the horses and cows which the daughters were to have under his will. It is true that the will does not provide that the horses and cows so given should be renewed at the expense of the estate from time to time during the lifetime of his daughters, the complainants. But it seems to me that the absence of such a provision in the will is not sufficient to overcome the clearly expressed intention that the hay and keep should be provided during the lifetime of complainants. This provision seems to me, by necessary implication, to include in the provision horses and cows, however acquired. Taking the clause in question as a whole, I think the better opinion is that the provision was not confined to the first horses and cows which the complainants acquired under the will, but that it was a continuing provision, applying to any which they should acquire, not exceeding two of each, during their lifetime.