Summary
In Naundorf v. Schumann, 41 N. J. Eq. 14, 2 Atl. 609, Chancellor Runyon holds that the phrase "what shall remain" (which I conceive unquestionably to be equivalent to "so much as shall remain") does not imply a power of disposal in the life tenant.
Summary of this case from Weaver v. PattersonOpinion
02-09-1886
NAUNDORF, Adm'r v. SCHUMANN and others.
F. W. Stevens, for complainant.
Bill for construction of will, and directions as to distribution of estate.
F. W. Stevens, for complainant.
THE CHANCELLOR. Adam Rienaker, late of Newark, deceased, died January 12, 1871. By his will, dated July 26, 1854, he provided as follows: "First. My will and desire is 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 manner following, viz.: The whole to be disposed of as shall to my executor or executors seem best, and the profits or proceeds thereof to be equally divided between Maria Schumann,Margaretta Schumann, John Schumann, Eurich Schumann, Caspar Schumann, Bastian Rienaker, and Falden Rienaker, brothers and sisters of myself and my wife, Julianna. And, lastly, I do hereby appoint Francis Kornayer and Lawrence Henninger to be my executors, to carry out my wishes and desires as herein expressed." The will was proved by Henninger alone, January 24, 1871. He was on his own application discharged as executor, February 24, 1885. On the twenty-eighth of that month Kornayer renounced the executorship, and on that day the complainant was appointed administrator de bonis non cum testamento annexo. The widow died October 18. 1884.
The first question propounded is, what is the estate of the widow under the will? The gift to her is not of the property, but only of the use and benefit of it. The testator says it is his will and desire that all his property, real and personal, be for her use and benefit; and, in the event of (by which is meant upon) her death, the whole is to be converted into cash, and the proceeds divided equally among the persons whom he names. The case differs essentially from those of which Annin's Ex'r v. Van Daren's Adm'r, 1,4 N. J. Eq. 135, is an example, in which the estate is given absolutely in the first instance, with absolute right of disposal, and then there is a gift over, at the death of the legatee, of so much as may then remain unexpended; for here the gift is only for the life of the primary legatee, with remainder absolute to the others. The will gives to the widow no power, express or implied, to dispose of the property, or any part of it, in any way. At her death, the whole of it is to be converted into cash, and divided among the other legatees. The testator, indeed, uses the qualifying words "what shall remain," but he probably used them in view of the fact that some of the personal property was of a consumable character.
The next question is whether the administrator cum testamento annexo has power to sell the land. If the power were merely to sell the property and divide the proceeds, it could lawfully be exercised by the administrator with the will annexed. Revision, p. 398, § 11; Howell v. Sebring, 14 N. J. Eq. 84. But, although the direction to convert is absolute, it is coupled with a trust or confidence in the executors, who are to sell as "may seem best" to them; that is, they are to exercise a discretion in making the sale. This is a personal trust and confidence, which does not devolve upon the administrator with the will annexed. The administrator cannot execute the power. Chambers v. Tulane, 9 N. J. Eq. 146; Brush v. Young, 28 N. J. Law, 237; Banning v. Sisters of St. Francis Hospital 35 N. J. Eq. 392, 400.
Another question presented is whether the death of a legatee in remainder, after the death of the testator, and before the death of the widow, will cause a lapse of the legacy. The legacy for life and the legacies in remainder took effect and became vested at the same time,—the death of the testator. And they vested absolutely. The death of a legatee in remainder after the testator's death, and before the death of the widow, would cause no lapse.