Opinion
05-09-1907
WOOD et al. v. LEMBCKE et al.
Willard P. Voorhees, for complainants. W. Edwin Florance, for defendants.
Suit by Orlando Wood, executor of Almira L. Wood, deceased, and others, against Maria Lembcke and another. Decree directed for complainants.
Willard P. Voorhees, for complainants. W. Edwin Florance, for defendants.
BERGEN, V. C. The last will and testament of Aimira Wood, deceased, after appointing her son Orlando Wood executor, and directing that all of her debts be paid, reads as follows: "Third, I give and bequeath unto my six children as follows: John E. Wood, Orlando Wood, Philip H. Wood, and Almira M. Dunham, each to have and to hold one-sixth part equally each of all that I may die possessed, either real or personal as to the remainder having advanced Ambrose Wood, Eight Hundred Dollars, he is to have one-sixth part less the amount of Eight hundred Dollars, and as to the remaining one-sixth part of all I may die possessed of, I do order to be given in trust to Orlando Wood for the use of Mortimer Wood to be paid to the said Mortimer Wood as his necessities may seem to require." Since the death of the testatrix the executor named in the will and all of the children and legatees of the testatrix entered into a written agreement with the defendants, by the terms of which they agreed to convey to the defendant certain real estate of which the testatrix died seised, and the defendants bound themselves to purchase. The defendants having refused to comply with the agreement, upon the ground that the will did not confer upon the executor any power of sale, the bill in this cause was filed to compel the specific performance of the contract of sale by the defendants. The only question raised which it is necessary to determine is that the executor is not vested, either expressly or by implication, with a power of sale, and therefore a marketable title is not offered.
The testatrix in and by her will appoints an executor to manage and settle her estate, and then, blending her real and personal possessions, gives to four of her children each a one-sixth part of the whole, to another one-sixth less $800 charged as an advancement, and the remaining one-sixth to Orlando Wood, the executor, in trust for the use of another son. It thus appears that the testatrix intended an equal division of her entire estate, real and personal. What one-sixth would amount to, after the payment of debts, can only be ascertained after the executor has fulfilled the duties of his office and settled his final account, to determine which there must be a sale of all the real and personal estate, for the testatrix has by her will blended the two kinds of property into a common fund. It is a part of the duty of the executor to make the division required by the will and to hold at least one share in trust. "If the executor is directed by the will, or bound by law, to see to the application of the proceeds of the sale, or if theproceeds, in the disposition of them, are mixed up and blended with the personalty, which it is the duty of the executor to dispose of and pay over, then a power of sale is conferred on the executor by implication." Lippincott's Ex'r v. Lippincott, 19 N. J. Eq. 121. The proceeds of this estate will, under this will, have to pass through the hands of the executor in the form of money. To make the division and establish the trust requires a sale of the land; and, although a power of sale is not expressly given, it arises under the circumtances existing in this case by implication.
The result, therefore, is that the objection made by the defendant is not well founded; and, there being no other reason offered why this contract should not be specifically performed, it will be so decreed.