64 N.J. Eq. 12 | New York Court of Chancery | 1902
The complainants, as executors and trustees under the will of Charlotte Jordon, deceased, who died September 12th, 1899,_seek a construction of the clause of said will set forth in the statement prefacing this opinion.
They charge and prove that the rents which were collectible out of the lands devised to them in trust by said clause have not produced, and are not likely in future to produce, the sum of $1,000 annually beyond the expenses of collecting, the repairs necessary to preserve the buildings on said lands, insurance of said buildings against fire and the taxes and water rents imposed by municipal authority. They further charge that Mrs. Eemy, to whom the clause directs them to pay $500 semi-annually, insists that she is entitled to such payment every six months, and that if the rents, issues and profits of the lands are insufficient to produce that sum, she is entitled to have any deficiency made up from other portions of the estate or from a sale of the lands devised by said clause.
It is to be regretted that the defendant who makes the claims ■ which occasion this appeal to the court has not appeared or supported her claim by counsel. The claim presented is, so far as the research of complainants’ counsel or my own research is concerned, novel in Hew Jersey.
A like view is expressed in many American cases. Nudd v. Powers, 136 Mass. 273; Dehaven v. Sherman, 131 Ill. 115; Irwin v. Wollpert, 128 Ill. 527; Delaney v. Aulen, 84 N. Y. 16.
An examination of the will of the testatrix indicates that the claim of Mrs. Remy is destitute of support from any permissible construction of its terms. It thereby plainly appears that the testatrix felt assured that the income from the lands in question would always be sufficient to provide for the semi-annual payments of $500 to Mrs. Remy, for she provided that the surplus of the rents, issues and profits, not employed in making such payments, should be invested and held in 'trust until Mrs. Remy’s death, and then be paid by the trustees to other persons. But neither in the clause itself nor in any other part of the will was Mrs. Remy given any interest in the lands in case of the insuffi
It does-not admit of doubt that the expression'“rents, issues and profits of land collected by trustees” means that sum of receipts from the land which remains—first, after maintaining the property by needed repairs and by protective insurance, and second, after payment of public charges.
Eeading the whole will I find the., plain intent to be to pay $1,000 annually out of the annual rents, issues and profits, and therefore out of what the trustees had of such rents, issues and profits wherewith to make payment. If they have not had, and shall not have, enough to make a full payment in any one year, no more can be exacted from them, or from the corpus of the estate, or from the residuary legatees.
If, in any subsequent year, a surplus should be produced, there may arise a question whether it can be used to make up past deficiencies, but the question is not now presented and need not be decided.
Complainants are entitled to a decree construing the will on the lines of the above opinion.