Opinion
No. 49/605.
01-25-1922
SCHEINER et ux. v. SCHEINER et al.
Riker & Riker, of Newark, for complainants. Otto A. Stiefel, of Newark, for defendants John Scheiner and others. Samuel Press, of Newark, for defendant Gesina Margarete Scheiner.
Suit by William Scheiner and wife against John Scheiner, as executor of the last will of Leonhardt Scheiner, deceased, and others. Decree advised for complainants.
Riker & Riker, of Newark, for complainants.
Otto A. Stiefel, of Newark, for defendants John Scheiner and others.
Samuel Press, of Newark, for defendant Gesina Margarete Scheiner.
FOSTER, V. C. Complainants seek the partition of certain lands or, in the alternative, a decree requiring the defendant John Scheiner, as executor of the last will of Leonhardt Scheiner, deceased, to effect an immediate sale of these lands. The answer of the defendant John Scheiner denies complainants' right to partition, or to compel him to make sale of the property, on the ground that as executor, or trustee under the will he has the sole and final determination respecting any sale of the property. The defendant Gesina Margarete Scheiner, who is the widow of Leonhardt Scheiner, has filed an answer asking the court to protect her interests in the event of a sale.
The testator died in June, 1913. His will was duly admitted to probate, and John Scheiner qualified as the surviving executor thereof. Mr. Scheiner died seized of several tracts of land, including the premises in question, and he left him surviving his widow and four children, all of whom are parties to this action. All of the estate except the premises in question has been sold by the executor or divided by agreement of the parties, among the devisees.
After providing for the payment of his debts and funeral expenses, testator directs his executors to pay his widow during her life one-third of the net income of his estate at the rate of $12 weekly, and in addition such sum annually as may be necessary to pay her this one-third of the estate's net income. This provision was made in lieu of dower, and has been accepted by the widow. It was contemplated by testator that this provision for his widow would exceed $624 annually, but if it was less, the deficiency was to be made up from the income of the other two-thirds of his estate, but not from the corpus.
By the second clause of the will the entire estate is bequeathed and devised to the four children in fee to vest on testator's death and to be paid and distributed among them by the executors as provided in the sixth clause of the will. The sixth clause gives the executors "full right and power in their absolute discretion to sell * * * all my property * * * to convert the same into money * * * and to invest and reinvest the proceeds thereof," for the following purposes: (1) To pay the income to the widow; (2) to divide or distribute the estate among the children; and (3) to make the estatemore available as well as to make the estate easier to manage." This clause of the will further provides that until her death during infancy, or until his daughter Barbara attained the age of 21, none of the beneficiaries, without the consent of his executors, can demand any division, partition, or distribution of the corpus of the estate or of any part of it. Barbara is now of age, and is a parly to this action. This clause of the will further provides that if any division or distribution of the corpus is made during the life of the widow, then one-third of the corpus is to be held by the executors to carry out the provisions made for her income, and on her death this one-third of the corpus is to be divided among the beneficiaries.
The power of sale of the executors, while absolute in terms, is neither imperative nor positive in directing or requiring them to exercise it. It is a mere naked power, which leaves it entirely optional with the executors to exercise it or not to effectuate any or all of the specified purposes for which it is expressly granted, and in this form it is not under the authorities an obstacle to the partition of the premises.
As the executors are neither directed nor required to exercise the power of sale, and as the lands have been devised to the children in fee, and not to the executors, the doctrine of equitable conversion does not apply, and the land retains its character as land until it is actually sold. Cook's Ex'r v. Cook's Adm'r, 20 N. J. Eq. 376; Belcher v. Belcher, 38 N. J. Eq. 126; Story v. Palmer, 46 N. J. Eq. 1, 18 Atl. 363; Cruikshank v. Parker, 52 N. J. Eq. 310, 29 Atl. 682; Cahill v. Cahill, 62 N. J. Eq. 157, 49 Atl. 809; Condit v. Condit, 73 N. J. Eq. 301, 75 Atl. 815; Moore et al. v. Wears et al., 87 N. J. Eq. 459, 100 Atl. 563; Wittel v. Wittel, 82 N. J. Eq. 229, 91 Atl. 722. In some of these cases partition was denied because there was a devise to the executors in trust, and no direct devise to the beneficiaries, and in such cases the construction placed upon the will required the determination that partition would defeat or destroy the intention of the testator.
In the will under consideration, not only is there no such trust created, but the testator actually contemplated a partition or division of his estate among his beneficiaries after the death of his daughter Barbara during her infancy or after she had attained her majority. Until the happening of one or both of these events, he directed the estate to be kept intact in the hands of his executors, and prohibited its partition or distribution without the consent or approval of his executors; and he further expressly provided that when such partition or division did take place, and if this occurred during the lifetime of his widow, then the executors were directed to retain one-third of his estate to produce the income for his widow. The partition sought is not only sanctioned by authority, but it is expressly authorized by the testator, and a decree will be advised for a partition and also for an accounting, and in the settlement of its terms provision can be made protecting the widow's lien for $3,500, and any other rights she may have in connection with the distributions of the estate that have been made, and also for the protection of the lien of Mr. Stiefel on John Scheiner's share of the estate.
The terms of the decree may be settled on three days' notice.