Opinion
07-06-1906
WHITE v. CROSSMAN.
G. H. Cain and John T. Bird, for complainant. Claud V. Guerin, for defendant C. E. Crossman. Edward C. Wyckoff, for defendant T. A. Clayton.
Suit by Josetta Crossman White, by her next friend, George C White, against Charles E. Crossman. Heard on bill to require defendant, as executor and trustee, to account. Decree rendered.
See 61 Atl. 529.
G. H. Cain and John T. Bird, for complainant. Claud V. Guerin, for defendant C. E. Crossman. Edward C. Wyckoff, for defendant T. A. Clayton.
BERGEN, V. C. I will dispose of this case now. This bill is filed to require this executor and trustee to account. At the hearing and argument most of the matters in dispute were admitted to have been settled by the bill and answer. The principal item on the discharging side of the account contested amounts to the sum of $1,240.11. The accountant charges himself, or should charge himself, according to his admissions, with $6,085.54. He prays an allowance for certain items of discharge amounting to $3,075.86, including, however, in that item the sum of $1,240.11. That sum represents the amount of money standing to the credit of the testatrix in a bank at the time of her death. The executor, finding it there, charged himself with it in the inventory, and now seeks to be discharged from that liability by reason of a paper writing, left by the testatrix, which reads as follows:
"This is to certify that, in case of my death, any money in the Asbury Park and Ocean Grove Bank at the time of my decease, standing in my name, shall be the sole property and money of Charles Edward Crossman, my son, now residing in West Park. In witness whereof I have hereunto set my hand and seal this twenty-sixth of November, nineteen hundred and one. [Signed] Mrs. T. A. Clayton.
"Sealed and delivered in the presence of W. T. Hubbard, Lochlan H. Rath."
A reading of this paper is sufficient to disclose that it is an attempt to bequeath money by means of a paper not executed according to the law of wills, as required in this state. By the terms of the paper it is not to take effect until the death of the testatrix, and until that time the money was to remain in her account in the bank, subject to her absolute disposal and control; that is, she could draw checks against it, and the amount which might be expected to pass by this paper would depend entirely upon how much she withdrew. This question has been so well settled in this state that it is useless to take the time to cite any authorities. In my judgment the executor and trustee is not entitled to that allowance, and, instead of being allowed $3,075.86, as he claims, he should only be credited with $1,826.75, leaving due to be accounted for $4,258.79. The allowance made includes counsel fees and surrogate's expenses in the orphans' court, as well as commissions on the fund.
The will bequeathed three legacies of $100 each, also $500 to Josetta Crossman, and the words used in the will are as follows: "I give and bequeath to Josetta Crossman, daughter of my deceased son, Joseph A. Crossman, the sum of five hundred dollars, when the property is disposed of, my watch and chain and jewelry, and all my bedding." My construction of that clause is that whenever there was money enough in hand to pay the $500 by the sale of any of this property, whether personal or real, she was entitled to have it paid to her. The will does not say that all the property was to be disposed of, but "when the property" was disposed of—and I take it that a fair interpretation of those words would be that when sufficient property was disposed of to pay the debts and bequests—the legacy would be payable. However, be that as it may, the property is all disposed of, except one lot near Asbury Park, at a place called "Edgemere."
The executor, however, claims that because the residue of the property is given to him, in trust for the "execution of my will," with power to sell and dispose of the same at public or private sale, all the property remaining after sufficient is sold to execute the will goes to him. My interpretation of the will does not reach that result. I think the law is well settled that when there is a trust, and the property given upon an express trust to be carried out, the trustee is expected, after executing the trusts expressed, to make disposition of the residue as the law requires in case of intestacy, and that in this case, as to all of her estate except the legacies I have named, the testatrix died intestate, and under the law of this state her heirs would take.
The husband comes in now and claims that he is entitled to all this property upon the theory that the will directs it to be converted into personalty, and therefore he is entitled to take all of it, to the exclusion of the heirs of testatrix. I do not take that view of it. This testatrix had ample personal property to provide for the legacies she gave, and to pay her debts. In addition to that she had two lots in and about Asbury Park. One has been sold for $3,500, and the other still remains in the hands of the trustee. And I am quite satisfied that if these two parties, the executor and the other heir, should decide to keep that land, they would have the right to elect to do so, and then the trustee would be required to transfer all of that property to the persons entitled to it. Certainly that would not be personal property, and the fact that, if it became necessary for the executor or trustee to sell one of these lots to pay the debts, it is not converted into personal property. It still retains its character of real estate, and is to be disposed of according to the law of descent in this state. It therefore follows that this executor is to be charged with $4,258.79, out of which he is to pay the $500 due Josetta Crossman, leaving in his hands $3,758.79, to be divided among the children of the testatrix. The land still undisposed of should be sold, not for the purpose of turning it into personalty, but for the purpose of making a division. That is the reason for making the sale. You cannot divide the land equitably, and the simplest way is to sell the land and divide the proceeds of sale.
You may take a decree directing the trusteeto sell this land, and add the amount received for it to the $3,758.79, and then he shall make an equal distribution of it, subject, of course, to the proper payment of the costs of this litigation. I will allow a counsel fee of $100 to each side, and also the costs of both parties.