25 N.J. Eq. 173 | New York Court of Chancery | 1874
George Barrell, late of the county of Essex, died on the 11th of February, 1870, leaving four children, George, Mary, Henry, and Charles. By his will, after directing payment of his debts, he devised to his son George, the complainant, in fee, a brick house and the lot of land of about two and a quarter acres, in East Orange, in that county, ylrereon the same was situated, with all the improvements which might be on the property at the time of the testator’s decease. To his son Henry, he devised, in fee, a farm in the township of New Providence, in the county of Union. Both George and Henry were, at the time of the testator’s death, in the occupation of these respective properties. After these devises, the testator directs that in the division of his estate, the sum of $8000 be charged to George, and §11,000 to Henry, on account of the real estate thus specifically devised to them.
The bill prays a partition of his real estate, not specifically devised, among his four children, and that Charles and Mary, who, since their father’s decease, have been in possession of the homestead, may account for the rent of that property since the testator’s death. Charles and Mary have answered. They deny their liability to account, and allege that the entire personal estate of the testator was taken by George and Henry into their possession, and that they still hold a large part of it, and although the debts are all paid, and a large surplus is left for distribution, refuse to pay them their shares of it, and refuse, also, to pay them their proportion, or any part of it, of the $19,000 with which the will makes George and Henry chargeable in the division of the estate.
It does not appear that the occupation, by Charles and
Charles and Mary protest against a partition, unless it be made on such terms as, at least, to secure to them the benefit of the charges which the will directs to be made against George and Henry, in respect to the land specifically devised to them. The complainant insists that the considerations presented by the answer, cannot, properly, influence or affect the action of this court, seeing that no question is made as to the legal title of the complainant to the share which he claims to own in the real estate of which he seeks partition. But, when partition is sought in this court, it will only be accorded on equitable terms, when it seems to the court just that such terms should be imposed. Doughaday v. Crowell, 3 Stockt. 201; Haines v. Haines, 4 Md. Ch. R. 133. The court cannot be successfully called upon to work injustice. The fact that the complainant might obtain partition at law, or that he is entirely at liberty to sell his undivided interest in the real estate in question, will not induce this court to
The complainant is before this court, asking for a division •of part of the estate. It is but just that he and his brother Henry should be required, in the division to be made here, to account to their brother and sister for their shares of the amounts charged in respect of the specific devises of real property to them. That can be done by charging the share of each of them in the real estate to be divided, with three-fourths of the amount with which, by the will, he is made chargeable in the division. The charge is to be for the equal benefit of his co-devisees.
Decree accordingly.