Opinion
04-11-1887
TERRY v. SMITH, Adm'r, etc., and others.
Hawkins & Durand, for complainant. S. Patterson and G. C. Beekman, for defendants.
Bill for partition. On final hearing on pleadings.
Hawkins & Durand, for complainant.
S. Patterson and G. C. Beekman, for defendants.
RUNYON, Ch. The complainant seeks partition of the land of her late mother, Harriet E. Manning, deceased, and an account of the rents and profits thereof coming to her, and an account of the personal estate of her mother, and a decree that her share thereof be invested for her benefit. She claims under the will of her mother a life-interest in one-sixth of the whole estate. By the will the testatrix, after directing payment of her debts and funeral expenses by her executor and trustee named, gave and bequeathed to her daughter Frances M. G. Wilson "the interest of the one equal undivided one-sixth part or portion" of her whole estate during Mrs. Wilson's natural life, and directed that upon the death of Mrs. Wilson "the said interest and principal thereof" be paid absolutely to Georgiana Sweet, a granddaughter of the testatrix. She then gave and bequeathed to her daughter, the complainant, "the interest of the one equal undivided one-sixth interest, part, or portion" of the whole estate during the complainant's natural life, and directed that on the death of the complainant "the said interest, as well as principal thereof," be paid absolutely to the beforementioned Georgiana Sweet. She next gave a legacy of $1,000 to her sister Mrs. Hendrickson, (which, however, she subsequently revoked by a codicil,) and $5,000 absolutely to her granddaughter Bessie Belle Bateman, daughter of her daughter Nellie J. Smith, on her attaining to the age of 21 years, and $2,000 absolutely to Harriet L. Smith, another daughter of Mrs. Smith, upon her attaining to her majority; and she then gave and devised all the balance and residue of all her property, both real and personal, of whatever nature or kind, and wheresoever situated, to James A. Bradley, her executor, "in trust for the execution of her will," and gave to her daughter Mrs. Smith all the rents, issues, and profits of all her estate, both real and personal, so to be held in trust, and directed the executor to pay over to her those rents, issues, and profits quarterly for and during her natural life; and upon her death gave, bequeathed, and devised all the remainder and residue of her estate, both real and personal, to Mrs. Smith's beforementioned two daughters absolutely. The value of the personal property was, it is said, about $700, that of the real estate about $42,000, and the debts amounted to about $14,200.
The gift to the complainant is of the clear one-sixth of the estate, real and personal. The scheme of the will is to give to her and Mrs. Wilson each one-sixth of the entire estate for life, with remainder to the complainant's daughter, to give to Mrs. Smith's two daughters $7,000, and then to give the residue of the estate to the executor to pay debts and funeral and testamentary expenses, and then to pay over to Mrs. Smith quarterly the rents, issues, and profits of the balance of the residue, and at her death to hand over such balance to Mrs. Smith's two daughters. The shares of the complainant and Mrs. Wilson are not subject to the trust created for the residue. The words "for the execution of my will" are employed in the will to qualify the trust, but they are superfluous, and do not extend it over the shares of the complainant and her sister Mrs. Wilson. The debts and the pecuniary legacies of $5,000 and $2,000 to Mrs. Smith's daughters are to be paid out of the residue, in exonerationof those shares. The complainant and Mrs. Wilson are each entitled to an undivivided one-sixth of all of the testator's estate, real and personal, without any deduction for the payment of debts, or for the payment of the pecuniary legacies.
The trust of the residue did not devolve upon the administrator with the will annexed. Brush v. Young, 28 N. J. Law, 237; Lanning v. Sisters of St. Francis, 35 N. J. Eq. 392.
The complainant is entitled to have her share set off to her for her use. Lf good reason be shown for so doing, a mixed trust-estate is partible in equity. Wetmore v. Zabriskie, 29 N. J. Eq. 62. It is manifest from the language of the bequest that the testatrix contemplated a conversion of the share into money, and the investment thereof for the benefit of the complainant for life. The gift to her is of the "interest of the equal undivided one-sixth part or portion" of the estate, and the will directs that after her death the "said interest, and principal thereof," be "paid" to Georgiana Sweet. And so, too, the gift to Mrs. Wilson is of the "interest of the one equal undivided sixth interest, part, or portion" of the estate for life, with a direction that upon her death the "interest, as well as the principal thereof," be "paid" to Georgiana Sweet. The testatrix, indeed, gives no express power of sale of the real estate, and, in the gift of the residue to Mrs. Smith, appears not to have contemplated the sale of the real estate therein, for she gives to her the rents, issues, and profits for life, and gives, bequeaths, and devises the property, after Mrs. Smith's death, to Mrs. Smith's daughters. The difference between the provision for the complainant and Mrs. Wilson and the provision for Mrs. Smith is very marked. The testatrix appoints no trustee of the shares of the complainant and Mrs. Wilson, but she evidently meant to create a trust as to those shares. In such case, where such a trust is created, and no trustee is appointed, the trust would devolve upon the executor. But the executor has renounced and refuses to act, and the administrator has no authority to execute the trust. Under such circumstances, this court would appoint a trustee. If the real estate can be partitioned without prejudice to the interests of the owners, the share of the complainant may be set off, and she may enjoy it as tenant for life.
By the will the testatrix declares that her reason for bequeathing a larger share of her estate to Mrs. Smith than to the complainant and Mrs. Wilson was not want of affection for the latter, but because they were "amply provided for in this world's goods," whereas Mrs. Smith was poor, and had no property of her own whatever; and that her reason for giving more of hei estate to Mrs. Smith's two daughters than to her other granddaughter, Georgiana Sweet, was that they were poor, and had no property whatever, while Georgiana Sweet had ample means and property in her own right. It is urged, on behalf of Mrs. Smith and her daughters, that, under the construction which is above put upon the will, the testatrix's intention to give to Mrs. Smith more than she gave to the complainant and Mrs. Wilson will be frustrated. But this consideration cannot control in the construction of the will, inasmuch as the language and terms of the instrument are not doubtful. The fact that the testatrix's plan of division of her property fails to effectuate her purpose in this respect will not justify the court in disregarding the plain provisions of the will. If her design is defeated, it is because she overvalued her property, or because it has fallen in value, or because she contracted debts or met losses after the making of the will. Where the testator's language and the provisions of the will are plain, the court must be guided by them.