Herbert v. Smith

1 N.J. Eq. 141 | New York Court of Chancery | 1830

The Chancellor.

The first inquiry is, what interest did W. W. Tuthill take under the will of his father? Most clearly, a vested interest. The payment of the distributive share of William, and all the heirs, could not be made until after the land should be sold. But that does in no wise affect the vesting of the estate. The principle contended for by the defendant’s counsel, that the right did not vest until the money was received, is unsound. There is a case to be found in 6 Ves. jr. 159, Gaskil v. Harman, in which the master of the rolls held that a residuary bequest vested only as the property was received ; but that was under very peculiar circumstances, not necessary to be explained, for the decree was afterwards set aside by Lord Eldon: S. C. 11 Ves. jr. 496. What estate had William in the share given him ? The defendants contend it was a life estate only, and that the provision in the will against lapsed legacies is to be applied according to the intention of the testator ; not to lapsed legacies only according to their technical meaning, but to all the legacies in such way as to create a limitation over after the death of the legatees, whether before or after the death of the testator. And in support of this it is said there are no words of perpetuity or inheritance in the will. Such words are not necessary. The intention of the testator appears to me perfectly clear. He orders his executors to sell all the residue of his estate, real and personal, and gives certain shares of the proceeds to his daughters, and certain other shares to his sons. He provides that the legacies given to three of his daughters shall not be paid to their husbands, but the executors shall retain them and pay the interest to the daughters during the lives of their husbands, and on their death then to go to the daughters or their children. He then adds, “my will further is that neither of the above legacies shall lapse by the death of either of my said children, but in case of such death the share of such deceased child shall go to his or her issue, in manner and proportions aforesaid, two shares to boys and one share to girls ; and if such deceased child shall leave no issue, then his or her share shall go to and among my surviving children in the proportions aforesaid.” This was a careful and just provision against the lapsing of any of these legacies. He had seven children, some of whom were married, and he might therefore reasonably expect that such provision would be necessary to insure to his descendants a proper proportion of his estate. I see nothing in the will to carry the intention of the testator beyond this. The legacy or share was given to William without any words of inheritance, it is true, but the whole interest or estate vests unless a contrary intention is clearly shown by the will.

Another inquiry is, whether the bond and mortgage given by Tuthill to the complainant on his two-ninths of the realty, or the order on Smith and the acceptance of it in the manner in which it was done, gave to the complainant any right or lien on the share or the proceeds of it. There is no doubt, between the death of the testator and the sale of the land, the beneficial interest was in the heirs. William, in common with the others, was entitled to the rents and profits, and received them. _ And there is as little doubt that he had a right to make a disposition of his vested interest, if he thought proper so to do. How far the mortgage alone might have operated to secure to the mortgagee the property, or so much of it as was necessary to satisfy his claim, it is unnecessary to determine. The complainant rests not only on the mortgage, but on the special agreement entered into with Tuthill and Smith. The order drawn on Smith by Tuthill, in favor of Herbert, was not a bill of exchange, and could have no efficacy as a commercial instrument; but it was nevertheless perfectly competent for Tuthill to give such an order, and for Smith to agree to pay the money when he had funds. It was a direction to pay part of his money to Herbert for a past valuable consideration. It was his own property, and he was competent to transfer it, and actually did so. The money was fixed in the hands of Smith the moment the order was accepted and the undertaking complete : Yates v. Groves, 1 Ves. jr. 280.

The assignment by Tuthill to Smith of all his right in the estate, cannot affect the complainant’s claim. It was made in September, 1817, which was long after the date of the mortgage, and the order on Smith, and the agreement by Smith to pay the money, and of consequence was subject to it as a prior vested right, which no subsequent transaction between Tuthill and Smith could defeat. The complainant then is entitled to recover the amount of his claim out of the fund, provided there be a sufficiency to satisfy it; of which I understand there is no doubt. Let an account be taken, 1. Of the amount due the complainant for principal and interest: 2. Of the amount of assets received by William Tuthill before the order on Smith, and also the amount received by him since: 3. Of the amount received by Smith, and the money still outstanding, and what proportion of the same is still due on the share of Tuthill.

The question of costs, and all farther equity and directions, are reserved until the coming in of the master’s report.