Opinion
02-24-1899
REEVE et al. v. TROTH et al.
Voorhees & Reynolds, for complainants. Lewis Starr, for defendant Emily Burroughs. D. J. Pancoast, for defendant Mary L. Troth.
Bill by Augustus Reeve and others, as executors of the last will and testament of Edmund Burroughs, deceased, against Henry Troth and others, for a construction of the will. Decree rendered.
The executors of the will of Edmund Burroughs ask this court for instructions in regard to the respective rights of Emily Burroughs, the widow of the testator, and Mary L. Troth, a sister of the testator, in the homestead dwelling house of the testator. The point to be decided involves a construction of the tenth and thirteenth paragraphs of the will. In the tenth item the testator bequeaths to his wife, Emily Burroughs, the "full and free use of my homestead dwelling house on my farm in Delaware township, wherein I now reside, and all the furniture, bedding, crops, and household goods, provisions, fuel, lights, and other articles thereto; also the full and free use of the carriage house, smoke house, and poultry house attached thereto, wood house, and one hog pen; also the yards, fruit, and vegetable gardens in front and surrounding the same; also the ice house, which my trustees, hereinafter appointed, are to have filled, if she desires it, with a good quality of ice, at the proper season; also stabling for two horses, and fodder and pasturage for two cows, if she desires to keep them; the hay necessary for the food of the horses and cows to be provided for in the leasing of my farm, as long as she may elect or desire to reside in my said dwelling house. And I do also will and bequeath to her the privilege and right of offering a residence or home to either or both of her own parents, and to my brother, or any one or all of my sisters, if she should desire to do so, and for any period of time that she may elect to have them remain with her, and as long as she shall continue to reside in said dwelling house and premises, as mentioned and as above provided." In the thirteenth item the testator provides as follows: "I will and bequeath to the trustees of the Cooper Hospital, at Camden, in the county of Camden and state of New Jersey, in office and acting at the time of my decease, though by whatever name it may be known, in trust, nevertheless, for the following uses and purposes, to wit: To sell and dispose of it at publicor private sale, whenever, in their judgment, the interest of my estate may be benefited thereby, all my real estate, and make good and sufficient titles for the same, as fully and freely as I might do if living; provided, however, that the farm of one hundred and fifteen acres of land, be the same more or less, containing my dwelling house, in Delaware township, known as the 'Woodland Farm,' shall not be sold so long as my said wife, Emily Burroughs, and my sister Mary L. Troth, or either of them, shall elect and desire to reside therein as hereinafter provided, and for which provision is hereinafter made. * * * And in case my said wife, Emily Burroughs, shall die before the death of my said sister Mary L. Troth, I do further order that my trustees aforesaid tender to my said sister, Mary L. Troth, the free use and occupancy of my dwelling house on my farm, known as the 'Woodland Farm,' with all and singular the privileges and rights heretofore agreed to and enjoyed by my said wife, Emily Burroughs, together with all the income above alluded to, to have, hold, and enjoy the same during the remainder of her natural life; and after the decease of my beloved wife, Emily Burroughs, and my sister Mary L. Troth, then I do further order and direct that my trustees aforesaid do assign, transfer, and set over unto the Cooper Hospital * * * my farm known as the 'Woodland Farm,' forever." Emily Burroughs has ceased to reside in the homestead dwelling house, and Mary L. Troth, the sister, is now in possession of the same, and claims her right to occupy the same became complete when the widow abandoned the house as a residence, while, on the other hand, the widow insists that she alone has the right of occupancy, although she has ceased to reside therein.
Voorhees & Reynolds, for complainants.
Lewis Starr, for defendant Emily Burroughs.
D. J. Pancoast, for defendant Mary L. Troth.
REED, V. C. (after stating the facts). In the first place, it seems to me clear that the sister is invested with no right in this dwelling house during the life of the widow. The widow may invite her to live with her in the dwelling house, just as she might have invited her if the will had been silent in regard to this privilege. It is only after the death of the widow in the lifetime of the sister that the trustees are directed to tender to the latter the use and occupation of the house. What the testator would have provided had the present condition of affairs been apprehended is not the question. As he has, in fact, drafted his will, the sister has no right in the dwelling house while the widow still lives.
As to the widow, her right is to use the dwelling house as a residence, with an auxiliary advantage of the use of the outbuildings, and to have ice and fodder, which in cidents are to be attached to the use of the dwelling house only while she resides therein. If the gift to her had been of a right to use and occupy, it would be entirely clear that she was invested with a life estate; for it is settled that such a gift, where there is no gift over in case the devisee ceases to occupy, is a life estate, and the donee can occupy by a tenant. Rabbeth v. Squire, 4 De Gex & J. 406; Mannox v. Greener, L. R. 14 Eq. 456; Howell v. Patry, 50 N. J. Eq. 265, 24 Atl. 1037. For "occupation," as Lord Eldon remarked in Fillingham v. Bromley, Turn. & R. 536, is not living and residing. * * * This construction, however, only obtains in the absence of any language in the will which implies a personal occupation or residence. A gift over, if the donee ceases to occupy the house, shows that the testator contemplated a personal use. McLaren v. Stainton, 27 Law J. Ch. 442. The language employed by the testator implies that the only right given is one of residence in the mansion house. The widow is to have the use of the dwelling house as long as she may elect or desire to reside in the said dwelling house. The limitation, as to the time of residence, applies as well to the gift and the use of the dwelling house itself as to the right to have the incidental benefit of the use of the outbuildings, and of the Ice and of the fodder. In my judgment, however, her right to reside there does not cense with the cessation of personal occupation. It is to be observed that there is an absence of any gift over in case she ceases to reside there during her life. It is to be further observed that the power of the trustees to sell the mansion house is so restricted that they cannot sell while either the widow during her life, or the sister after the death of the widow, elects or desires to reside therein. In case both the widow and sister should release their respective rights to reside in the mansion house, the trustees could sell the same; and the use of the proceeds could be devoted, as provided for in item 13, between the widow and sister. The mere fact, however, that the widow has ceased to reside there is not a release or a waiver of her right to reside there at any time during her life. The words "as long as she may elect or desire to reside there" are used by the testator as equivalent to "whenever or while" she may choose to reside there. I think the right of this widow is similar to that in the case of May v. May, 44 Law T. (N. S.) 412, where the testator provided that the widow might reside, rent free, in his residence. It was held that, while this did not enable her to let the house, yet she might reside there from time to time, without forfeiting her right. Subject, however, to the right of the widow to reside in the mansion house, the trustees have the title to the same during her life. They can take measures to preserve the same from waste. In doing so, I do not see why, in the widow's absence, they maynot put a keeper in possession to care for it. If they choose to select the sister of the testator for that purpose, the widow has no ground for complaint. She is not entitled to receive rent for the house, nor to control its use, except for the purpose of personal residence. I will advise a decree in conformity with these views.