49 N.J. Eq. 573 | N.J. | 1892
The opinion of the court was delivered by
The true construction of the will of John Leeds, deceased, was-properly determined by the decree in this cause, holding that the widow took a trust title in the residue of his estate, and that it did not make an absolute disposal thereof to her. But the decree-should be modified and changed as to the accounting in the settlement of her estate and the distribution of the fund in' her hands at her death. This is necessary to fulfill the purpose'
That she should have kept the trust fund received from her husband’s estate separate from her own, and charged the expenses of her maintenance to this fund, is now evident. But by mingling this with her own, she incurred no penalty or forfeiture, without fraud, of which there is no pretence in the case. Pratt v. Douglas, 11 Stew. Eq. 516, 540. Equity will follow and separate them, and will put upon the trustees the burden of distinguishing what is his. Central Bank of Baltimore v. Connecticut Mutual Life Ins. Co., 104 U. S. 54; Perry Trusts § 447. It is evident that she supposed the bequest of the residue of the estate
In stating the account, no credit should, be allowed to her estate for permanent improvements put on the building by her, while in her occupation after her husband’s death, though an .allowance may be made for repairs, necessary to her comfort and for preserving the property, to a reasonable amount. Pratt v. Douglas, 11 Stew. Eq. 542.
As the difficulty in settling the estate of Lydia H. Leeds, which has led the complainants, executors of her will, to file this bill for the direction of the court, has been caused by the will of John Leeds, deceased, and a reasonable doubt of its true meaning, and the proper method of accounting under it, as well as by the intermingling the trust fund, the costs should be paid out of the money in the hands of these executors, and reasonable counsel fees allowed, before any account is stated between the parties.
The decree will be reversed and a reference ordered, according to the views above expressed.
For reversal — Depue, Dixon, Magie, Reed, Scudder, Wan Syckel, Werts, Bogert, Brown, Clement, Smith, Whitaker — 12.
For affirmance — None.