36 N.J. Eq. 121 | New York Court of Chancery | 1882
This is a suit for partition, and the question presented is whether the defendant is entitled to a decree directing that the proceeds of the sale of one-sixth of the land, in respect to his interest in which he is made a party, be paid over to him. The parties claim title under the will of Dr. Joseph Eifield. By the will, the testator devised all his real estate to his trustees for the purposes of the will, as thereinafter set forth. By a subsequent clause of the will, he directed his trustees, when his youngest grandchild should reach majority, to convey all his real estate, except certain ground rents, to all the children of his daughter Louisa, except one whom he names, and for whom he had otherwise provided, and the issue of such as might be dead leaving issue, in equal shares as tenants in common; the issue of any deceased child to take the share which the parent would have taken if living, except the share of his grandson, Ralph V. M. Cooper (the defendant), which should continue to be held in trust as before provided and the income alone thereof appropriated as he had previously directed in the case of his share of the personal estate. The direction referred to is that the share (of personal estate) shall be retained in the hands of the trustees, and the income thereof be appropriated to the defendant’s support and maintenance, at their discretion. There is no further provision in reference to the defendant’s share of or interest in the real estate. The defendant insists that the trust is a dry one; that he is the equitable owner of the fee of the share, and that as the trust is to appropriate the income to his benefit he is entitled to have the proceeds of the sale of the share under the proceedings for partition paid to him. He seeks to nullify the