8 Barb. 18 | N.Y. Sup. Ct. | 1850
The right of the widow to a life estate in the lands devised, subject to be defeated upon her marriage, with remainder in fee to John Morton the plaintiff, of a moiety of the premises, is not controverted. But the doubt, if any exists, arises out of the devise for the benefit of William Morton and his children.
The will contains no power of sale, of that part of the estate given to William and his children, by express words; but if a sale be necessary to carry into effect the intention of the testator then a power for that purpose will be implied. (2 Barb. S. C. Rep. 63, 4 Hill, 492. 4 Kent’s Com. 319, and the cases cited in note c.) The executor is directed to put out William’s share of the estate on bond and mortgage, and pay him" the interest during his natural life. And after his death the property is to be saved and divided amongst his surviving children when they arrive at the age of twenty-one years. The testator, therefore, clearly contemplated a sale of this portion of his estate. And unless a power to the executor for that purpose is
The children of William Morton, who will be entitled to take the estate upon his death, comprehend as well those in existence at the time of the testator’s death as those who may be born afterwards. Where a legacy is given to a class of individuals, in general terms, as to the children of A., and no definite period is fixed for its payment, it will be considered as due at the death of the testator. And only such children as were either bom or begotten at that time, are entitled to share in the legacy. But where there is a postponement of the division of the legacy, given to a class of individuals, to some period subsequent to the testator’s death, every person who answers the description, so as to come within the class at the time appointed for the division, will be entitled to share, although not in esse at his death, unless the will discloses a different intention. (2 McCord's Ch. Rep. 256. 1 Bro. C. C. 582. 4 Paige 47.) The
I am therefore of opinion—
1. That there is an implied power to the executor, by the will, to sell the moiety of the estate given to William and his children, which may be exercised by him upon the death of the widow Chloe Morton, and not until that time.
2. That the children of William Morton who will be entitled to take the proceeds of the sale at his death, will be those children who may be in existence at that time.
3. That the limitation of those proceeds to the children of William, with the right of their mother to take the interest
A decree or judgment must be entered accordingly.