2 Barb. 63 | N.Y. Sup. Ct. | 1847
There is sufficient in the will of Samuel Borland to authorize the call which the plaintiffs make upon this court to give it a judicial construction. There are doubtful clauses in reference to the disposition as well of the personal as of the real estate. There are also doubts as to the validity and extent of the power to sell the testator’s land, given to the executors.
The will is inartificially drawn, and some of the intentions of the testator are expressed in obscure, if not contradictory, terms. But I think there is sufficient in the will and codicil, together, to denote the main intentions of the testator, and to carry them into effect. At any rate, there is not so much uncertainty as to require this court to pronounce the two instruments, or either of them, null and void.
The testator’s widow, and his four children by her, were entitled to the use of the stock, farming utensils, provisions, grain and household furniture, not required for the payment of his debts, and excepting the cow, bed, bedstead and bedding bequeathed absolutely to the widow, until his farm should be sold, or the widow marry, or their third child should arrive to the age of ten years, whichever should first happen. The term was not extended by the codicil, but the fourth child was to be provided for in like manner with the other three. As it turned out, the term expired when the third child attained the age of ten years. Until then, the widow and her four children were entitled equally to the use of such personal property. That the absolute title to it was not bequeathed to them is evident from the authority given to the executors to sell the personal property at any time within that period, if they should deem it ex
The widow and her four children were entitled to the use and enjoyment of the testator’s land until the youngest child should attain the age of twenty-one years ; the children absolutely, and the widow unless she should marry in the mean time. And if she did marry, then only to the time of her marriage. The codicil is very clear to that effect, and the duration of the estate of the children is in no manner dependent upon the marriage of their mother, except that upon the happening of that contingency they were entitled to the entire use of the property during the residue of the term. They are not bound to account to the other heirs for the rents or profits of the land. And the produce on hand at the expiration of the
There is nothing in the gifts of the use of the real and personal estate to the widow and minor children, which could suspend the absolute power of alienation of the real estate, or the ownership of the personal property, for a longer period than during the lifetime of the widow and the minority of her youngest child. Neither the devise or bequest of such use, nor of the property over, was void as contravening any rule applicable to executory devises.
The widow was entitled to one cow, and a bed, bedstead and bedding for the same, immediately after the death of the testator. As the farm had not been sold during her widowhood, she has no right to another cow, or any additional household furniture.
The executors are fully empowered to sell and convey the real estate. They had the power to do so, at their discretion, before the youngest child arrived at the age of twenty-one years. They are bound to do so now. The first provision on the subject clearly gives them the power to sell, if they should deem it necessary, before the third of the minor children should attain the age of ten years. There is strong reason to infer, from the whole of that clause, that the authority to sell was intended to be unlimited as to time. The word “ sooner,” which precedes the words conferring the power, would seem to refer to the possible necessity for an early sale, and was not probably designed to qualify the power. The testator did not intend that the property should be sold while the wants or convenience of his family required that they should occupy it; unless the sale should become necessary. But he intended to give positive directions that it should be sold at some period. This inference is much strengthened by a subsequent provision in the will. In that provision the testator directs that when the farm is sold the money shall be divided; and then proceeds to give various portions of it absolutely to his widow and several of his children. This clause, if it stood alone, would, by necessary implication, give a general power to sell. The executors are
As the youngest child has now attained the age of twenty-one years, it is clearly the duty of the executors to proceed immediately to execute the power conferred upon them. They must be directed to sell the lands, and the sale may be public or private, as they may deem either the most conducive to the interests of those who are entitled to the proceeds. The avails must be distributed agreeably to the directions contained in the will.
The defendants Hoag and wife, are entitled to the five hum
The four younger children are entitled to two hundred and fifty dollars each; the first three under the will, and the youngest under the codicil. The executors must pay that sum to each, deducting from their respective shares the one-fifth part of the amount reported due from them on account of the personal estate.
The testator’s son, Andrew Borland, is entitled to four hundred and thirty dollars out of the avails of the real estate, should that sum be left after payment of the legacies to the widow and her children. There is, in terms, a qualification to his legacy, which would seem to make it dependent upon there being any money on hand after the testator’s affairs should be settled. That undoubtedly refers to the payment of the several legacies previously given. His is to be postponed to those given to the widow and her children. As there will be sufficient to pay all those preferred legacies, the qualification will not apply. As to the direction that the executors shall pay him such part as may appear proper to them, that is inconsistent with the absolute gift, and is therefore void. The executors must pay him the full amount, if there should be sufficient for that purpose.
The residue of the testator’s estate, after deducting therefrom
The debts due from the testator’s sons, John, Isaac and Sea-burn, including the interest up to the time of the distribution, not exceeding the amount of their respective shares, must constitute a part of the estate to be divided. If the debt of either falls short of his share, the difference must be paid to him if living, or, if dead, to his next of kin. If the indebtedness should exceed the share of either, it becomes extinguished by the terms of the will, but in that case, or if it should be equal to his share, he or the next of kin will not be entitled to any part of the fund.
It is manifestly proper, and I shall direct, that the costs of all the parties shall be paid out of the residue of the testator’s estate, after the payment of the legacies particularly specified, and before any final division shall be made.