Cool's Executors v. Higgins

25 N.J. Eq. 117 | New York Court of Chancery | 1874

The Chancellor.

This case was before this court in 1873, upon a general demurrer, filed by the defendant, Higgins, to the bill of complaint. Cool's Executors v. Higgins, 8 C. E. Green 309. The late Chancellor there held that the executors could maintain the suit for the recovery of the money requisite to enable them to comply with the direction of the will in respect to the cemetery lot, but expressed no opinion as to whether they could maintain it so far as the legacies due to the respective legatees are concerned. He held that Higgins ' purchased the land subject to the encumbrances on it. It now clearly appears, that at the sale under the act “ to authorize the sale of lands limited over to infants, or in contingency, in cases where such sale would be beneficial,” the master, prior to setting up the properly, publicly proclaimed to the bidders and to all who were in attendance, that the premises would be sold free and discharged of all liens, charges, and encumbrances thereon, under or by virtue of the will. All the persons in being, who were iilterested in the property, were parties to the proceedings under the act, and were duly brought in under them. The solicitor of the petitioner therein, (the petitioner was one of the life tenants,) assured Higgins at the sale, and before he purchased, that the land was to be sold free of all encumbrances, and the husband (a lawyer) of the other life tenant gave him the same assurance at the same time. Higgins, relying on these representations and assurances, bid for and purchased the property, and paid the purchase money and took his deed, accordingly.

That he would, under the circumstances, have been relieved from his purchase, on application in due time, on the ground of mistake arising from the proclamation and assurances referred to, there can be no doubt. That he made no application was due to his confidence in them. The bill in this cause was not filed until over four years after his deed was •delivered to him. All those who are interested under the •devise, except the legatees, are parties to this suit. The fund derived from the sale was brought into court. The late Chancellor, in the order fixing the allowance to the owners •of the particular estate, provided for the payment out of the interest, of the legacy of $50 a year, for fifteen years, given to the testator’s widow by the will, in the event of her remarriage. By decree of May 9th, 1871, he set apart a part ($86.10) of the annual interest of the fund for accumulation, for the benefit of those in remainder. The owners of the property have had the benefit of a sale of the premises free of the encumbrances in question in this suit, and the fund in court is correspondingly greater, accordingly.

This fact did not appear in the case when it was before the late Chancellor. The conclusion at which I have arrived depends on the peculiar circumstances of this case, and does not, therefore, militate against the doctrine expressed in his opinion, that the purchaser at such a sale buys, subject to existing encumbrances. The payment to the testator’s widow of the annuity above referred to, out of the fund in court, was, it may be observed, in conflict with that opinion. It appears to me clear, that as between Higgins and the fund, the equities are all in favor of the former. There can be no equity in compelling him, under the circumstances, to pay the money charged on the land. The fund should pay it.

It was objected on the hearing, that the executors were not entitled to a decree as to the legacies to William Davis, David Deats, and Leonard C. Davis. The bill alleges that the legatees look to and call upon the executors for payment. The executors, therefore, may be regarded as filing the bill as trustees for the legatees. But, if so, the legatees should have been made complainants, with the executors. They are not parties to the suit. The estate has been settled so far as payment of the debts is concerned, and all the personal estate has been administered, except a balance of $20.69, remaining in the hands of the executors. The executors have no interest in those legacies. They therefore file their bill as to them as mere naked trustees. It does not appear, except from the statement of the bill above mentioned, that the legatees have authorized them to collect their legacies, or that they are desirous that they should be collected. The cause must stand over until the necessary amendment be made by making the legatees, parties complainant. Fish v. Howland, 1 Paige 20. When that shall have been done there will be a decree directing the payment of the legacies out of the fund, and for a reference to ascertain the amount due on the legacies, and the amount requisite to be paid to the executors to answer the directions of the testator in respect to the lot in the cemetery, (the testimony on this head not being explicit enough to warrant a decree without a reference,) and also to ascertain the proportions in which those amounts should be-borne by the estates for life and in remainder, respectively.