Opinion
08-25-1896
MEIS v. MEIS et al.
Guild & Lum, for complainant. Charles Borcherling, for defendant Eliza Coegnl. Schuyler B. Jackson, for defendant Julia Heinz.
Bill by August Meis' executors-against August Meis, Jr., and others.
This bill is filed by the executors of August Meis to get a judicial construction of the will under which they were appointed. The terms of the will are as follows: The testator, in the first place, provides for the payment of his just debts and funeral expenses, and bequeaths to his wife, Barbara, all his household furniture, carpets, beds, bedding, etc. He then bequeathed to his daughters Eliza Coegel and Julia Heinz each the sum of $2,000. Then follows the fifth clause: "I give, bequeath, and devise unto my son August. Meis, Jr., with conditions hereinafter mentioned, all my real estate, and also my undivided one-half interest in the tannery business corner of 17th avenue and Lillie street, in the city of Newark, and now carried on under the firm name of Meis & Egner, for the manufacture of leather. And further it is also my will, and I hereby order and direct, that after my decease, my son August Meis, Jr., shall immediately enter into said business firm, and to take my place as partner with Henry W. Egner. my present partner; and the said business shall be carried on without delay, hindrance, or interruption of any person or persons whomsoever; and now I do hereby order and direct the following conditions: First. That my son August Meis, Jr., is hereby directed and compelled to allow to my beloved wife, Barbara Meis (nee Matheus), the right and privilege to remain in my dwelling house (homestead) Nos. 139 and 141 Belmont avenue, during her life, and that she can occupy one-half of said house, and my son August Meis, Jr., can use one-half of said house; and, further, in case either of the parties should move out of the said house, the party so moving is not allowed to put other tenants in their respective places, but that the party remaining shall then have the privilege to occupy the whole house, and for their own use only and not for tenants. Second. I further hereby direct and order my son August Meis, Jr., to pay to my wife, Barbara Meis (nee Matheus), the sum of four dollars every week for her support during her life; and that he, the said August Meis, Jr. (my son), must pay all the expenses for keeping the house in good order and repairs, pay all taxes, assessments, water rents, insurances, etc., and he shall not be allowed to put any mortgage on said dwelling house, nor sell the same. The said homestead shall remain clear and free of any incumbrance whatsoever. Third. My son August Meis, Jr., is also prevented of selling any part of the business property on which the tannery is located, unless by consent of my partner, Henry W. Egner, whom I also appoint as one of my executors. After the decease of my son August Meis, Jr., I give my estate to his children in equal shares; and in case be, my son August Meis, Jr., should die and leave no children, I then bequeath and give the same to the children of my two daughters Julia Heinz (nee Meis) and Eliza Coegel (nee Meis) in equal shares." He then appoints Henry W. Egner and John F. Zimmerman to be the executors of his will. The bill states that the complainants, as executors, have filed an inventory, which shows personal estate to be $10,909, $6,157 of which represents the interest of the deceased in the partnership of Meis & Egner; leaving a balance of $4,752 as representing the other personal estate, including the household furniture specifically bequeath id to the wife. The bill then states that according to the belief of the executors, this balance of personal estate is insufficient to pay the debts, the costs of administration, and the two legacies of $2,000 each to Eliza and Julia; that they are advised that the two legacies must abate to the amount of the deficiency; that they are advised that if the lastmentioned balance should happen to be more than sufficient to pay the debts and expenses of administration and the two legacies, then the surplus remaining would represent personal estate of which the testator died intestate. The bill then states that the said Eliza and Julia insist that their legacies must be paid in full out of the whole estate in general. The bill then proceeds to state that August Meis, Jr., claims that the will gives him all the interest of the testator in the partnership property absolutely, while the executors are advised that there is doubt of the proper construction of the will in respect to the interest of August Meis, Jr., in this property, and desire judicial instruction whether they are required to take from August Meis. Jr., a bond, under the provisions of the eighth section of the act concerning legacies, which required such bond on delivering personalty to a legatee for life. The bill then states that August Meis, Jr., is married, but has no child or children; thatJulia Heinz has three children, all infants. The prayer is that the court may construe the will, and direct the executors in what manner to proceed with the execution of their duties under said will with respect to said estate, and particularly said partnership interest; that the rights and interests in the several parties in the said estate may be settled and adjudged by the order and decree of the court; and that in particular whether they are bound to require a bond from August Meis, Jr.
Guild & Lum, for complainant.
Charles Borcherling, for defendant Eliza Coegnl.
Schuyler B. Jackson, for defendant Julia Heinz.
REED, V. C. (after stating the facts). The questions propounded by the pleadings are three: First, whether the interest in the firm personalty given to August Meis, Jr., is liable to be applied to the payment of the legacies to the daughters; second, whether the testator died intestate of all his personal property except his interest it the firm personalty; third, whether the interest which August Meis, Jr., takes in the firm personalty is an absolute interest or such a limited interest as comes within the provisions of section 8 of the legacy act.
In respect to the first question, the answer is plain. The legacies of $2,000 each, in the event of the personalty (other than that invested in the partnership) proving insufficient to pay debts and legacies in full, must abate ratably. There is no charge of these legacies upon the realty. The gift of the personalty invested in the partnership to August Meis, Jr., is specific. It therefore cannot be depleted for the purpose of paying the pecuniary legacies.
The second question, in the light of the statements in the bill, is unimportant, because all the personal estate (other than partnership personalty) will be exhausted in paying the pecuniary legacies. If the testator died intestate of any of his estate, it can be only of an interest in this personalty during the life of August Meis, Jr., or thereafter if he leaves no children, and there are no children of his sisters. The remainder of all his estate, after the death of Meis, Jr., is expressly given to the children of Meis, Jr., if he dies leaving children; and, in default of such children, then to the children of his two daughters. During the life of Meis, Jr., the interest in this part of the personalty is not touched by the terms of the will, and it belongs to the next of kin.
The third question is whether August Meis, Jr., takes the father's interest in the firm personalty absolutely, or whether his interest is such as to entitle the executors of the testator to require a bond pursuant to section 8 of the act concerning legacies (Revision, p. 582) before delivering the property to him. This section provides that whenever any personal property is bequeathed to any person for life, or for a term of years, or for any other limited period, or upon a condition or any contingency, the executor or administrator cum testamento annexo shall not be compelled to pay or deliver the property so bequeathed to the person having any such life interest or other interest as aforesaid until security shall be given to the orphans' court in such sum as shall sufficiently secure the interest of the person or persons entitled in remainder. Is the interest which August Meis, Jr., takes limited so that it falls within this provision? The gift of the interest in the tannery business is, in the first instance, absolute. It is cut down (if at all) by the limitation over, namely, that in case he should die and leave no children, then to the children of testator's two daughters. This language, since the act of 1851, means a definite failure of issue, and so the limitation over is saved. The effect of this language is not to cut down the interest of August Meis, Jr., to a life estate. He has a qualified interest, which may become absolute upon his leaving children at the time of his death. Condict's Ex'rs v. King, 13 N. J. Eq. 377. Apart from the statute, the first legatee is entitled to receive the property without giving security. Rowe's Ex'rs v. White, 16 N. J. Eq. 411. While the interest of the first legatee under this language of the will is not an estate for life, it is an estate given upon a contingency, within the meaning of the act. If the language of the testator providing for a limitation over on the death of the first taker without children is valid, then Meis, Jr., can be compelled to give security. But the main point to which the argument was directed, was whether this limitation over was not so repugnant to the character of the interest first given to Meis as to be void. The gift is of the testator's interest in the partnership of which he died a member. The partnership property consisted of both real and personal property. The gift was coupled with an order that after the decease of the testator said August Meis, Jr., should immediately enter into said firm, and take the testator's place with the surviving partner Now, the question to be answered is whether the power of disposition conferred upon Meis, Jr., by the direction that he should use the personalty in the firm business was such as to give him an absolute interest it is entirely settled as a rule of construction that in case of a gift or devise to one for life with a limitation over upon the first taker's dying without issue the life estate will not be enlarged by adding to the gift a power to sell. The power to sell will be deemed to mean a power to sell the life interest expressly given. Pratt v. Douglas, 38 N. J. Eq. 516; Downey v. Borden, 36 N. J. Law, 460; Theob. Wills; Wooster v. Cooper (N. J. Err. & App.) 33 Atl. 1050. But a devise or bequest generally with the power to dispose of the gift absolutely, renders a gift over void. Theob. Wills; Annin's Ex'rs v. Vandoren's Adm'r, 14 N. J. Eq. 135-142; Armstrong v. Kent, 21 N. J. Law,509. The direction in the will that the son should immediately take his place as partner and continue the business implied that the firm property should be used in the business. It therefore conferred upon Meis, Jr., all the power of a partner over the partnership property. The power of a partner to sell the firm property in the transaction of the general business of the firm is absolute and unquestioned. T. Pars. Part. *163. This power, however, as between the partners themselves and as to purchasers with notice, may be limited by the articles of co-partnership. So the sales, in any instance, must be made for the firm, and not for the individual partner. If it is apparent to the purchaser that the sale is made for the benefit of the individual, the transaction is void. So it follows that the implied power of sale conferred upon Meis, Jr., was a power to sell as a part of the firm business. The firm is supposed to receive the consideration resulting from the sale. I have reached the conclusion that this is not the absolute unlimited power of disposition which is essential to confer an absolute estate in Meis, Jr., and so defeat the limitation over in case he shall die leaving no children. The power is limited by the scope and purpose of the firm business. The power is not to sell his interest in the firm, but it is a power which devolves upon bim, as agent of the firm, to sell the firm's interest in specific property for the benefit of the firm's business. The gift contained in the will is of the father's undivided one-half interest in the business. That interest Meis, Jr., has no implied or express power to sell. I think the bequest is within the terms of the statute, and that Meis, Jr., cannot compel a delivery of his father's interest in the firm personalty without giving the statutory bond.