61 N.J. Eq. 331 | New York Court of Chancery | 1901
The claim of the mortgagee and creditors of the widow is that, under the will of her husband, she took an estate indeterminate in quantity, from which an estate for life only would result by implication, and -not by expression, with an unlimited power of disposition, and hence, under the rule laid down in
I am unable to adopt that view.
The devise to the widow is during her widowhood, and hence, is no more and no less than a devise for life. It is not less than a devise for life, because it may, at her pleasure, endure for life. It is plainly an express limitation of the estate to her life, and hence, under the rule laid down in Downey v. Borden, even if there were present a general power of disposition, the estate would still be confined to one for life.
But there is, in this case, no general power of disposition. The only such power is that given to the executors, as such, and Miles, one of them, has survived and never joined the widow in any conveyance or mortgage of the premises here in question. Besides, that disposition is confined to the necessities of the wife for the use and benefit of the children. This was so held in Stevens v. Flower, 1 Dick. Ch. Rep. 340, and it was remarked by Chancellor McGill, in Wilson v. Wilson, 1 Dick. Ch. Rep. 821, that, under the rule established in Downey v. Borden, “the power of disposition or absolute dominion must be given either expressly or by necessary implication. The will must be construed, if possible, so that all parts of it may stand. Hence, if the expression depended upon be susceptible of a fair interpretation that will permit the limitation over to stand, that interpretation should be given to it.”
Here the power of disposition is limited to so much of the estate as was necessary for the support of the children, several of whom were, at the date of the will and at the decease of the testator, minors, and some of those helpless.
In my opinion the children of the testator took a vested interest under the will. It was so held iñ a somewhat similar case, in Brown v. Hammond, Johns. (Eng.) Ch. 210, and in Eaton v. Hewitt, 2 Drewry & S. 184; 8 Jur. (N. S.) 1120; and by Sir George Jessel, master of the rolls, in Underhill v. Roden, L. R. 2 Ch. Div. 494 (1876); also in Bates v. Webb, 8 Mass. 458, and Ferson v. Dodge, 23 Pick. 287. The case is in marked contrast with Wooster v. Cooper, 8 Dick. Ch. Rep. 682, and Benz v. Fabian, 9 Dick. Ch. Rep. 615.
This result is not inconsistent with the last sentence of the
Another question arises, as follows: The holder of the mortgage offered to prove that it was given for necessaries furnished to Eliza, and that he is within the equity of the second clause of the will; and leave was reserved to produce that evidence if, upon consideration, I should be of the opinion that the fact, when established, would give validity to the mortgage. But I am unable to take that view. As before remarked, the power of disposition was given to the widow and Sweeting Miles, as executrix and executor, and no authority was cited to me for the position that a mortgage executed by the widow alone to secure necessaries would be within that clause. Moreover, it was recently held by the court of errors and appeals, in Rutherford v. Sanntrock, 15 Dick. Ch. Rep. 471, that a power to “dispose” does not include a power to mortgage.
I will advise a decree in accordance with these views.
