Adams v. Beekman

1 Paige Ch. 632 | New York Court of Chancery | 1829

The Chancellor:—The guardian ad litem has not brought the rights of these infant defendants properly before the court, but there is sufficient on the papers to enable me to see that the complainant’s claim cannot be sustained. The one-fifth of the proceeds of the sale of the farm is not given by the will absolutely to the son. Although the testator directs the farm to be sold at the expiration of the three years and gives the proceeds to his five children forever, it is evident from the subsequent clause that he contemplated the event which has actually happened, to wit, the death of some of his children before the expiration of the three years, or before the proceeds of the sale were reduced into possession, or disposed of by them. By the fifth clause of the will the testator provided for such a contingency and has directed that the share of the legatee so dying should go to his children if he has any, and if not it is to go to the surviving children of the testator.

From the case of Hutchin v. Mannington, (1 Ves. jun. 366,) it would seem that the expressions in the fifth clause of this will were not sufficient to carry the limitation over to the children of the son if he had lived until the expiration of the term of three years. But that decision was seriously questioned by Lord Eldon in Stilwell v. Bernard, (6 Ves. 536,) and in Gaskell v. Harman, (11 Ves. 497,) although it is not expressly overruled. That question is not material in the determination of this case. Where there is a bequest in remainder after the determination of a particular estate, with an executory limitation over in case of the death of the legatee, such dying is to be applied to the time when the remainder takes effect in possession, and not to the time of the death of the testator.^[1] The legatee takes but a contingent interest which will be vested if he dies during the continuance of the particular estate, and the limitation over will take effect. (Harvey v. McLaughlin, 1 Price’s Rep. 264; Galland v. Leonard, 1 Swanst. 161.) In this case by the death of the' son during the term, and before the executors were authorized *to sell the farm and divide the proceeds, his interest was divested, and the executory limitation over to his" children took effect. They are entitled to the share of the proceeds which would have belonged to him if living. They do not take as heirs of their father but as contingent legatees under the will.^[1] Their mother is not entitled to any part thereof, either as dower, or under the statute of distributions; neither can it be subjected to the claims of the creditors of the estate of their father.

I regret to be compelled to say the interest of these infant defendants has been wholly neglected by those whose duty it was to protect their rights. The executors instead of submitting the construction of this will to the court, have Buffered the bill, which did not contain that part of the will on which the rights of the infants depended, to be taken as confessed; and the guardian appointed by the court to conduct the defence of the infants, instead of attending to it has entrusted it to a solicitor whose name appears to the complainant’s bill as her counsel, and who does not even appear at the hearing to submit the facts in the case to the consideration of the court. If another such case occurs I shall consider it my duty to inquire who is the guardian ad litem. The complainant’s bill must be dismissed, but as the guardian has wholly neglected his duty he has no claim for costs, even as against her.

[1] See Home v. Pillans, 2 My. & K. 15.

[1] See Dunham v. Osborn, post, note.