72 N.J. Eq. 571 | New York Court of Chancery | 1907
In this case, lands to which the wife had title, were sold in a foreclosure suit, and the surplus ($551.50) over payment of the mortgage was paid into court. The husband had an estate by the curtesy initiate in the lands, and on application of the wife for the payment to her of the entire surplus in court, I decided that the respective interests of the husband and wife in the lands sold, and therefore in the proceeds of sale, were as follows, namely, that the wife had an estate for her life in the lands with remainder to the husband for his life, if he survived the wife, and then with remainder over to the issue in fee. On the death of the husband during the wife’s life, the entire sum converted is to be paid to the wife. See my opinion in Leach v. Leach, 69 N. J. Eq. (3 Robb.) 620, referring to the cases. The Chancery act (Revision. P. L. 1902 pp. 531, 532 § 60) provides that when money is paid into court on foreclosure proceedings, the owner of any estate for life may apply for the payment of a gross sum in lieu of the estate, and that the court shall direct the payment of such gross sum as shall be deemed a just and reasonable satisfaction for said estate for life, and which the person entitled shall consent in writing to accept in lieu thereof. The wife applied for the immediate payment to her of all the monejr to which she was en
Three exceptions are filed to the report.
First. That the testimony of the witnesses has not been read over or signed by them since the taking of the same. This exception is not well founded, for the reason that a special order was made in the case on notice, in reference to the signing of the testimony, and that order has not been appealed from.
The second exception is that the master has not complied with one direction in the order of reference, namely, fixing the value of the use and occupancy of the premises required by the order. This occupancy was that of the husband who had been in possession of the premises. The master has not made any report against the husband by reason of the value of this occupancy, but has simply reported the receipts for rents and payments. The husband is not aggrieved by reason of this failure to report on the value, and the exception must be overruled.
The third exception is really a reargument of the question decided on the former hearing, namely, whether the court has power, under the statute, to order the payment of a gross sum to the wife out of the proceeds of sale as the value of her life estate against the consent of the husband as entitled to a contingent estate in remainder. This argument is, perhaps, irregular, but
There is no question here of tbe deprivation of property, for the amount to be paid to the wife is only the value of her interest, and the husband’s rights beyond that are secure. So far as the mere question of property right is concerned, the conversion of lands into money, under a superior right, to which the tenure of the lands was subject, terminates ipso facto the precise property right in the lands, and the proceeds of sale in strict legal theory are held not as lands, but rather as in lieu of the lands, for the ultimate purpose of compensating the parties interested in the lands. The money cannot in fact be lands, and as money, is subject to contingencies (loss, shrinkage, &c.), from which estates in the lands itself would be free. Interest on the money during life is one way of giving compensation to the life tenant, but it is not the only method. A gross sum'for the value of the life estate is another way, and it is within the power of the legislature either to fix this method of compensation or to confer upon the courts the power of fixing it and its terms and conditions. This selection of the methods for compensation is a necessary result of the lawful conversion of the lands into money, by the superior right, and is an incident to which the estates in the lands are subject. In Ross v. Adams, 28 N. J. Law (4 Dutch.) 161, 179 (1859), where the purchase price of lands taken in eminent domain proceedings was paid into court, the supreme court, in the absence of any statute, directed payment of sums in gross for the value of all the interests where the parties were sui juris and could receive it. The court of errors and appeals, 1 Vr. 504,