36 N.J. Eq. 419 | New York Court of Chancery | 1883
This suit was brought to enforce the specific performance of an agreement made February 1st, 1882, between the complain
“ I hereby nominate, constitute and appoint my beloved wife, Lydia Ann Clark, executrix, and my friends, William A. Lewis and--, both of Jersey City aforesaid, executors of this my last will and testament, to which said executrix and executors, the survivors and survivor of them, I commit the proper administration of my estate, the execution of the powers ;and the discharge of the duties herein imposed.”
The testator then gives to his wife his homestead and the plot of ground connected therewith, in fee, and his household furniture and household effects, paintings and library, horses and. carriages, and his barn and stable and the improvements on the land connected with the homestead, also another house and lot in fee, and his interest in the unsettled estate of a certain business ifirm. He then gives a house and plot of land to a church, with a limitation over in a certain event, and proceeds as follows:
“ All the rest and residue of my houses and lands and real estate remaining, and not hereinbefore particularly devised, whatsoever and wheresoever situate and being, I hereby authorize, empower and direct my said executrix and executors, the survivors and survivor of them, within one year after my decease, or within such further time as they may deem advantageous and to the-best interest of my estate, to bargain and sell, either at public or- private sale, as they may deem best, to any person or persons and for such price and prices- and on such terms as they may think proper, hereby authorizing them to receive in part payment at such sale or sales part-consideration mortgages on such liberal terms as they may deem prudent and advantageous to my estate,, and for all the said houses and lands and real estate so to be sold, when sold as aforesaid, I hereby empower my said executrix and executors, the survivors and survivor of them, to make, execute and give to the purchasers-thereof respectively, good and sufficient deeds in the law for the transfer, thereof.”
He then instructs his executrix and executors, and the survivors, and survivor of them, to pay over in quarterly installments one-sixth of the rents arising from any houses and lands and real estate-which he had directed to be sold from the time of his death to the. time of such sale and conveyance, after paying thereout all taxes,, assessments, repairs and interest on mortgage encumbrances, if any, to each of five persons whom he names, his wife and his two-daughters, and their husbands, and the other sixth to his wife for the education of his grandchildren. He then, after a recom
“ I nominate, constitute and appoint my said wife, Lydia Ann Clark, and my said friends and the survivors and' survivor of them, trustees and trustee under this my will, for the purposes and discharge of the duties and trusts hereinafter created and imposed.”
And after providing that the trustees shall not be required to give security, and expressing' his entire confidence in them, he directs them to invest and keep invested in the securities he designates, the sums of money he thereinafter mentions, until such time as they shall be wholly distributed as thereinafter provided. He then directs that there be set aside out of his estate not thereinbefore bequeathed, to be by his trustees so invested, the sum of thousand dollars for each of his two daughters and their respective children. He finally gives all the rest and residue of his estate not thereinbefore devised, bequeathed, or set apart, to be invested as thereinbefore directed and then remaining undisposed of, under any previous provision of his will, to his wife and two daughters in equal shares.
The question to be decided is whether the complainant’s deed will pass a valid marketable title to the land mentioned in the agreement, whether the deed from the executor to her gives her a good legal title, and that title is not subject to any trust under the will. The will gives to the executors an absolute power of sale, not a power for any particular purpose, but a general power.
No express trust is created by the will in the executors, as such, as to any part of the estate, except the rents before sale. For the trusts for his daughters, the testator makes a separate appointment of trustees, whom he charges with the trusts accordingly. It is urged by defendants’ counsel that the fact that certain bequests are, as before stated, incomplete, may affect the power of sale, and that they show that the testator’s design, so far as they are concerned, was not carried out. But in the first place, the power of sale, as has already been said, is not dependent on those bequests in any way. It precedes them in the will and contains no reference to them, and it is evident that the intention of the testator in giving it was to cause an absolute conversion of his estate. In the next place, the bequests contained the blanks when he executed the will, and he therefore is presumed to have intended that they should be incomplete. Nor can the proposition of defendants’ counsel, that the testator died intestate of the property in question, be maintained. He died intestate of no part, of his estate. The residuary gift is of all his estate not thereinbefore specifically devised, bequeathed or set apart to