120 N.J. Eq. 475 | N.J. Ct. of Ch. | 1936
The opinion of this court construing the will of Doctor Henry Ost appears in
The quoted matter relates to the property of which the decedent died intestate. It is now suggested for the first time that the executor (complainant) should be permitted to administer the intestate's property as constructive trustee for, and should turn over that property to, those entitled to take the same as statutory distributees, and it is urged that the appointment of an administrator or other personal representative is, by reason of the existence of a qualified executor, unnecessary.
I accede to the suggestion. The rule is stated in 23 C.J. 996,note 12 (b), as follows:
"Right of Executor to Administer Estates Undisposed of byWill — In cases of partial intestacy, or where provisions of a will have become inoperative, the executor is entitled to administer and distribute the property undisposed of, and it is not necessary or even proper to appoint an administrator for that purpose." Citing McGreevy v. McGrath,
There will, therefore, be a direction that complainant-executor hold and administer, as constructive trustee, the property with respect to which the decedent died intestate and turn over the same to the person or persons entitled thereto under our statute of distribution. *477
In my determination that the debts and legacies are chargeable against the personalty I gave full effect to the elementary rule that the personal estate is the primary fund from which debts and legacies are to be paid, except in those instances where either from the will or from attendant facts it clearly appears that the testator entertained a contrary purpose and intended those items to be paid out of some other fund. The rule has been stated even more strongly, namely, that in the absence of statutory direction or of a contrary intention appearing from the language of the will or some surrounding circumstances, the personal estate is not only the primary fund for the payment of such items but isthe only fund. I took into consideration the fact that the testator's personal property exceeded very substantially his real estate and that nowhere in the will does there appear anything from which can be spelled out an intent to charge the debts and legacies on real estate. As against these circumstances may be considered the fact that after directing the payment of debts and funeral expenses and giving the general legacies the testator disposed of the residue by saying (in the seventh article): *478
"After making bequests as cited on page One of this will I direct that the balance of my estate be Held in trust by the Federal Trust Co. of Newark N.J. as executors and the proceeds thereof be divided as follows * * *."
The word "balance" can mean only the "residue" of what is left after satisfying the preceding disposition made by the will. It will be noted that when disposing of that "balance" (which I construe to mean "residue") the testator blended his realty and personally into a single fund or mass and disposed of that fund or mass, or attempted to dispose of it, by the percentages expressed in the seventh article. I am now persuaded that the circumstance of such blending of real and personal assets into one residuary mass removes the case from the application of the ordinary rule that the personal property is the primary fund out of which the debts and general legacies should be met. Corwine
v. Corwine (Court of Errors and Appeals),
"Since the decision of the court of errors and appeals inCorwine v. Corwine,
The rule in the Corwine Case was recognized by Vice-Chancellor Fielder in Weber v. Bardon,
I do not, however, express the same view with respect to the manner in which shall be charged administration expenses, including executors' commissions, legal fees and estate taxes. That question is not before me, not having been raised by the bill and not being necessarily involved in those questions that were presented by the bill. Allocation of such items may well be disposed of when their extent is ascertained and when all parties may be heard on any special equities that may be present.