Opinion
03-01-1910
WALLACE v. WALLACE et al.
Hugh B. Reed, for complainant. McCarter & English, for Katherine R. Wallace and others.
Suit to construe a will by Elizabeth A. H. Wallace against Allan B. Wallace and others. Heard on final hearing on bill, answer, replication, and proofs. Conclusions stated.
Hugh B. Reed, for complainant.
McCarter & English, for Katherine R. Wallace and others.
HOWELL, V. C. Deborah A. Wallace died on June 30, 1902, leaving a will, which is the subject-matter of this controversy. She left her surviving her husband Daniel Wallace, who died April 30, 1903, and her children Elizabeth A. H. Wallace, the complainant, David L. Wallace and Allan B. Wallace. David L. Wallace died March 1, 1904, leaving a widow, Laura, and two children, Katherine and Kenneth. Kenneth Wallace is now but 19 years of age. Allan B. Wallace has an infant daughter named Janet Wallace. The testatrix left little or no personal property, but she left a piece of real estate consisting of a house and lot, the lot having a frontage on Clinton avenue and also on Brunswick street in Newark. The lot appears to be of sufficient depth to be divisible into two salable tracts, one containing a dwelling house fronting on Clinton avenue, and vacant lots fronting on Brunswick street. The will gave the use of the estate of the testatrix to her husband and her daughter Elizabeth, the complainant, during the lifetime of the husband, and made provision for their maintenance out of her estate during that period. The clause of the will out of which the difficulties now to be solved have arisen reads as follows: "in case my said daughter shall survive my said husband I order and direct that she shall have the use of the balance of my estate during her life, and if the said use shall not prove sufficient for her comfortable maintenance then I direct that my executors shall dispose of so much of my estate, real and personal, and shall use so much of the proceeds thereof, as shall be necessary for that purpose." The complainant survived her father and has been in receipt of the income from her mother's estate since his death. She now files her bill claiming therein that the income from the estate as now invested is not sufficient to provide for her comfortable maintenance, and she prays that the executor may be directed to make sale of the real estate so that he may use the proceeds of the sale for her benefit.
I think it sufficiently appears from the testimony that the income from the estate is too small to comfortably maintain the complainant. She alleges in her bill that the total income is on an average about $250 per year. This, in view of the circumstances in which the complainant has lived and is entitled to live, is entirely insufficient for her comfortable maintenance, and if provision can be made under the terms of the will for increasing the amount it should be done. It was held that this was a question for the court in the case of Jacobus v. Jacobus, 20 N.J.Eq. 49, and in Babbitt v. Babbitt, 26 N.J.Eq. 45. It therefore appears to me that the land in question should be sold by the executor for the purpose of creating a fund to which the complainant may resort for such maintenance as is meant by the will of her mother.
A difficulty arises out of the following facts which relate to the Brunswick street lots. Several years ago this tract was sold under the provisions of what is known as the "Martin Act" for unpaid taxes and assessments for local improvements. An assignment of the certificate of sale was made by the city to Mr. Ross who advanced all the money that was necessary to pay off the city's claim. On April 5, 1904, a declaration was made by Mr. Ross which read as follows: "Whereas, the Brunswick street lots belonging to the estate of the late Deborah A. Wallace are about to be sold by the city under the Martin Act for unpaid taxes and street assessments, now I, the undersigned, do hereby agree in the interest of the heirs to said estate to advance the money to satisfy the city's claim and to accept title to said lots as trustee for the benefit of said heirs, namely, Elizabeth A. H. Wallace, Laura V. C. Wallace, guardian and administratrix, and Allan B. Wallace, said title to be relinquished by me when directed by a majority of said heirs upon their payment to me of the principal advanced, with interest. It being further understood that the said heirs pay the interest annually together with the city taxes." This instrument was signed by Mr. Ross, and underneath his signature was "Approved" by the complainant, Laura V. C. Wallace, and Allan B. Wallace. It is claimed that this arrangement took the Brunswick street lots out of the control of the will; placed the title in Mr. Ross as trustee for the persons named. I do not think so. The document on its face shows that so far as Mr. Ross was concerned the tax title was meant to be mere security to him for the money advanced. The parties have paid the interest on the amount advanced by him from year to year, and no attempt has ever been made to perfect the fee-simple title in him under the provisions of the law under which the sale was had. Besides, there is a provision in thewill under which it is claimed that Kenneth Wallace, the minor son of David L. Wallace, and Janet Wallace, the minor daughter of Allan B. Wallace, have an interest of greater or less extent in the real estate in question. And while it might be competent for the parties interested who are of age to make such agreement about the disposition of the property as they saw fit, there is no one who can represent the infants or who can by any declaration or estoppel deprive them of any interest which they may have derived under the will of their grandmother. I must therefore hold that the sale of the Brunswick street lots under the Martin Act did not change their true character as part and pareel of the estate of the testatrix, and that this portion of her estate is subject to the power of sale contained in the will. My judgment, therefore, is that it is the duty of the executor to make sale and disposition of the whole of the property in such parcels as he may deem most advantageous, and that he should provide out of the proceeds thereof for the comfortable maintenance of the complainant in accordance with the direction of the will. If the amount that she should receive cannot be agreed upon between her and the executors the court will settle it at the time of the signing of the decree.