Lanning v. Sisters of St. Francis

35 N.J. Eq. 392 | New York Court of Chancery | 1882

The Chancellor.

This is a suit for the construction of the will of Mrs. Margaretta Mayer, deceased, late of the city of Trenton. The will was made April 28th, .1880. By the first clause the testatrix directs payment of her debts and funeral expenses. By the second and third she gives directions for her funeral and for masses. By the fourth she gives a small legacy for books for certain poor children. The fifth is as follows :

“ I will $500 to the St. Francis Hospital, in Chambersburgh, Mercer county, state of New Jersey. The $500 shall remain as a fund as long as the hospital lasts. I will [that] the interest only shall be divided among the sick every year; and furthermore, I direct that every year, [on] the day of my death, [there] shall be one high mass prayed in the church or chapel of St. Francis Hospital for me and [my] family.”

By the sixth, she gives $500 to Augusta Mayer, directing that she have the use of the interest thereof only for life, and that after her death the fund be divided among certain persons named in that connection. By the seventh, a gift of a like sum is made to Elizabeth Schmitt, she to have the interest only of it for life, and at her death the principal to go to her two sons. The eighth is as follows:

“ I will my house to Mary Baldauf and Anthony Baldauf, No. 160 Bose street, Trenton, New Jersey ; and the plate on the front door, M. Mayer, shall remain forever. Both Mary and Anthony Baldauf [shall] have the use as long as they live, and after both [shall have] died the house or property shall he sold and the money shall he divided to -(among) Anthonv’s first wife’s children, three boys and one girl.”

By the ninth she disposes specifically of certain articles of personal use. The tenth is as follows:

“I will and appoint John Beiser, in the city of Trenton, Mercer county, state of New Jersey, in fee simple, to have power over all my real estate and personal property after I am deceased, to sell and divide all the money to Joseph C. Link’s children, Mary and Sethe Link, to have the interest every year for their use only; after they become of age each one shall have [an] equal share for (of) what I will to them. The 9th part shall have their share before the 10th part; and [as to] what is left, Joseph C. Link’s children shall have the half part of my real estate after all [shall have] got their share (shares) what (whom) I have named before.”'

By the eleventh she gives to the two sons of her brother, Casper Link, deceased, the half of her real estate and personal property after her death. The twelfth is as follows :

“ I give, devise and bequeath unto' my administrator and executor, John Beiser, Trenton, Mercer county, state of New Jersey, all my estate, both real and personal and mixed, wheresoever the same is situate and of whatsoever the same may consist, to the use of my administrator and executor, John Reiser, city of Trenton, Mercer county,.state of New Jersey, in fee simple.”

By the thirteenth she appoints Eeiser executor.

The will was duly admitted to probate and letters testamentary thereon issued to Eeiser by the surrogate of Mercer county, September 28th, 1880. Eeiser died in May, 1881, and letters of administration eum testamento annexo de bonis non, were issued to the complainant. The questions submitted are whether the $500 mentioned in the fifth section shall be paid over to “ The Sisters of St. Erancis of Trenton, Yew Jersey,” the corporation owning, controlling and managing the hospital mentioned in that section, and, if not, what disposition shall be made of the fund; whether the complainant, as administrator mm testamento annexo de bonis non, has power to execute the trusts created by the sixth, seventh and tenth sections; whether he has power to sell the real estate; whether the devise in the eighth section is of all the property on Rose street on which the testatrix lived (the house thereon was numbered 160), or only that part of it on which the house and other buildings stand; whether Joseph Link’s daughter Sarah is the person referred to by the name of “ Sethe ” in the tenth section, and to whom and in what proportions the residue of the estate goes.

The gift of the $500 to the hospital is a valid charity. Perry on Trusts § 699 ; Atty.-Gen. v. Moore’s Exrs., 4 C. E. Gr. 503. The gift is, in effect, to the corporation of the hospital. The rrysnomer will not defeat the gift Boyle on Char. 130; McBride v. Elmer’s Exrs., 2 Hal. Ch. 107 ; De Camp v. Dobbins, 2 Stew. Eq. 36 ; Goodell v. Union Association, Id. 32. And it is an absolute gift by its terms. By the charter of the hospital (P. L. of 1873 p. 928) it is declared that the essential object of the corporation' shall be the erection and maintenance of a hospital for the care of the sick, and the right of perpetual succession is granted. The corporation will take the fund and hold it on the trust declared in the will, that is, in trust to invest it and devote the interest to the purpose specified in the will — the benefit of the sick in the hospital.

The trusts created by the sixth and seventh sections of the will — to invest, pay over interest for life, and at the death of the life-tenant, divide the principal — do not devolve on the administrator. Nor does that created by the tenth section, for the benefit of the children of Joseph C. Link.

Nor has the administrator power to sell the real estate. The power to sell is given, by the tenth section, to Reiser personally. The words “ in fee simple,” in that connection, were probably used as synonymous with “absolutely.” By that section (it precedes his appointment as executor) power is given to him individually, over all the real and personal property of the testatrix, to sell it and divide the proceeds; and by the twelfth section, which also precedes the section appointing him executor, the testatrix gives to him, as executor, and to his use as such, all her property. He evidently was clothed with a trust, not with a mere power of sale. While a naked power of sale would, by virtue of the statute (Rev. p. 398 § 11), devolve upon the administrator, a trust, iu the absence of any provision in the will that it shall do so, does not. Brush v. Young, 4 Dutch. 237. The tenth section creates a trust to sell, invest half of the net proceeds, and pay over the interest to Joseph C. Link’s children until they shall attain to majority, and then to divide. Moreover, it appears clearly, from the will, otherwise — that the testatrix confided in Reiser, for, as before stated, the power to sell is to him individually, and not as executor, and the gift of the legal title, though to him as. executor, was intended to be in aid of the power previously given. The power given by the tenth section is over all the estate, real and personal, and of course extends to and covers the property mentioned in the-eighth section. The trusts created by the sixth, seventh and tenth sections are not incumbent on the administrator, and the power of sale given by the tenth does not devolve on him.

The devise in the eighth section — of the testator’s house, No. 160 Rose street — is a devise of the whole property which she owned there. The property was conveyed to her by Frederic Miller, in an exchange of properties between them. When she got it, the property was all in the possession of Miller, and was' all used by him for a residence and place of business. He lived in the house, and carried on his business of a butcher in the buildings on the rear of the property. He bought the property in three different parcels — first, the lot on which the house and all the other buildings (except perhaps a stable) are. The house is at the northerly corner of the lot, and the other buildings cover all the rear. That lot was forty feet front and rear, by about one hundred and seventy deep. While, as yet, he owned only that lot, Miller had access to the buildings on the rear of it by means of a way of his own over it, from Eose street. He next bought a strip of land sixteen feet wide, for a passage-way from the tow-path of the canal (which is south of his lot) to the rear of his lot. The northerly line of this strip was coincident with so much of the southerly line of his lot at the extreme rear end, and the strip lay at right angles to the lot. Afterwards he ceased to use this way, and permanently closed it up. He bought another lot, adjoining both. That lot was twenty feet front and rear, and lay between Eose street and the sixteen-foot strip. Of this he fenced off a strip eleven feet wide, on the southerly side, for about half the depth of the lot, for an alley or passage-way to his buildings in the rear of the house, and having no further need of the way he had used over the lot on which the house is, he discontinued it,, and used all the property between the house and the alley fence as ornamental grounds, planting shrubbery thereon &o. He occupied the whole of the property for his own purposes of residence and business, as before stated. His slaughter-house was on the rear of the house lot. The testatrix obtained all the property from him in one transaction — the exchange before stated. It was conveyed to her by one deed. There is no evidence at all that she intended, by the devise in question, to devise anything less' than the whole property. There is no. building on the front except the house, and that, as before stated, is numbered 160.

The gift in the tenth section, to “ Sethe,” daughter of Joseph C. Link, is undoubtedly intended for his daughter Sarah, who was called in the family, “Sadie.” The will was drawn by Eeiser, who was a German. This will account for the peculiar spelling of the name. Joseph C. Link never had any children except his two daughters, Mary and Sarah.

The intention of the testatrix' was that, after satisfying the legacies given in the.sections of the will preceding the tenth, the residue was to be equally divided between the two daughters of her deceased brother, Joseph C. Link, who were to have half, and the two sons of her deceased brother, Caspar Link, who were to have the other half. She says the “ ninth part shall have their share before the tenth part,” meaning that the gifts given by the first nine sections shall be first satisfied; and she adds, “ and [of] what is left, Joseph C. Link’s children shall have the half part of my real estate after all [shall have] got their share (shares) what (whom) I have named before.” Though by this last sentence, while it is said that Joseph C. Link’s children are to have the half of her real estate, no mention is made of the personal, yet, from the preceding part of the section, it is manifest that she intended that they should have half of the residue, without regard to its character as real or personal property. No further disposition is made of the residue of the personal estate, except in the gift to Caspar’s sons, of half of the real and personal property.

There will be a decree in accordance with the views above stated.