33 N.J. Eq. 80 | New York Court of Chancery | 1880
Julia Ann Sommer, deceased, late of Newark, by her will, dated April 6th, 1872, gave power to her executors to sell her house and lot in Mulberry street, in that city, and provided that when it should have been sold, $3,000 of the proceeds of the sale should be set apart for the sole and separate use of her daughter Julia (then the wife of George W. Courter, now deceased), who was to receive the interest and income thereof during her natural life, and at her death it was to be paid to the persons who at that time might be Julia’s heirs at law. And she further provided that if Julia should so elect, the fund might be invested in a house and lot, which she might select, in which case the conveyance of the
In the case under consideration, the testatrix undoubtedly' intended to secure to the legatee the use of the fund as against her .husband so long as it remained uninvested in real estate, but meant to give her the absolute control of it to invest it at her pleasure in real estate, to her own use absolutely. This is manifestly equivalent to a provision that she may at will take the fund into her own hands for her own use absolutely. She will not be compelled, in order to obtain the benefit of the provision, to convert the fund into real estate, and then to sell that (perhaps at a sacrifice), but the fund will be given to her directly. There will therefore be a decree that, after deducting the costs of this suit, which are to be paid thereout, it be paid over to her.