Knox v. Newman

44 N.J. Eq. 309 | New York Court of Chancery | 1888

The Chancellor.

The principal question involved in this case is, whether the testator appointed his son one of the executors of the will.

By force of the will’s provisions, that, if one of the three executors should die after the testator’s death, another should be appointed by the surviving executors, and, that at “ least two ” of the executors should concur and act at each sale, it is apparent that Mr. Stearns intended that there should be three executors capable of exercising their judgment and taking part in the management of his estate. He did not contemplate that one should be under legal disability. It was his purpose that his estate should have the benefit of the judgment of three acting and competent executors, and that a majority of those three should agree before a sale or an investment should be made. His son was to be an executor in the place of Smith, if he should be of age at the father’s death, but Smith need not step aside for him if one of the other persons named as executors should be then dead. The son, in that case, could take the place of the person who had died.

The sentence which makes provision for the son as executor, subjected his appointment to but one contingency, and that is, that he should be twenty-one years of age at his father’s death, and it then devoted itself to making provision for a place for the son, that is, either the place of Smith, or the place of one of the three persons named as executors, who should be dead when the testator died.

The requisite, that the son shall be twenty-one years old, is a condition precedent to his taking Smith’s place, and is also a condition precedent to his taking the place of one deceased.

I think that this is the only construction that can be put upon the sentence and allow it to accord with the testator’s intention, that he shall have three executors capable of acting.

It is urged that the testator should not be taken to have omitted to make provision for the event of one of the persons named as executor dying before him, and-then of dying himself, before his son should attain the age of twenty-one years. It would be but natural for him to make such an omission. When the will was made, the son was more than seventeen years old, and within less than three years and a half would be of full age. The testator may have reasoned that it would be impossible for both an executor and himself to die before the happening of that event, or, that he need not provide against the emergency of an executor dying before him, for, if such an emergency were to arise, it would be during his own life, and he could supply the loss it occasioned by further testamentary provision. There are other contingencies in which he might have been left without an executor or executors, which we cannot pretend are provided for. For instance, if all three, or any two, of the executors should die before the testator, or, if the son and one, or two, or all, of the executors, should die before the testator.

I see but little force in the argument that we should do violence to the plain intent that three executors are to be sui juris, in order to provide for á single contingency, when other equally probable contingencies are 1-eft unprovided for. The fact that there were unprovided for contingencies, that must happen before his death if at all, indicates that the testator intended to provide for them himself, when they should occur, by changes in his will.

The failure of the testator to change his will need not result disastrously to his estate. The court will not suffer a trust to fail for the want of a trustee. If one of the executors neglects his duty or refuses to act, he may be removed and another may be appointed in his place. If three trustees shall be needed, the court can, and will, supply the third.

My conclusion is, that Josiah O. Stearns has no authority, as executor or trustee, to join in a conveyance of his father’s lands. This conclusion obviates the necessity of passing upon other questions that were suggested at the argument of the case.

The bill will be dismissed, with costs.