42 N.J. Eq. 68 | New York Court of Chancery | 1886
Horatio J. Mulford, late of Bridgeton, in this state, died July 16th, 1885. By his will, dated March 3d, 1884, he first directed that his executors pay all his just debts and funeral expenses. By the second section he gave to his wife, in fee, in lieu of dower, a house and lot in Wenonah, in this state, and a house and lot in Bridgeton, together with certain other interests-thereinafter particularly specified, in his personal and real estate. By the third he devised and bequeathed, gave, granted and conveyed unto his executors all the residue and remainder of his estate, real and personal, of which he should die seized and possessed, for the following uses, viz.: one-half of the income of it for the use of his wife for life, and the other half for the use of his son, Horatio J. Mulford, until he should become thirty years of age; the testator’s wife and son, “during the years above limited,” to have the use and occupation of the house and lot where the testator resided, on the northeast corner of Atlantic and Vine streets, in Bridgeton, together with the household
The gift of use and occupation to the wife in the third section is a gift for life. The will, by the first section, directs that all the testator’s just debts and funeral expenses be paid by the executors, and then gives to the testator’s wife certain real property in fee. It then gives all the residue and remainder of the estate to the executors in trust for certain uses, viz., one-half of the income of it is to go to his wife for life, and the other half to the use of his son until he shall become thirty years old. He then gives to his wife and son, “ during the years above limited,” the use and occupation of certain specified real and personal property. The doubt as to the extent of the duration of the wife’s estate has arisen from the words just quoted, “ during the years above limited.” That the testator did not intend to limit the wife’s use and occupation to the time when his son would attain to the
The taxes upon that property, and the cost of ordinary repairs thereto should be paid by the trustees out of the income of the estate. There is nothing in the will to indicate an intention on the part of the testator that those expenses should be paid out of the corpus of the estate. So long as, under the will, the wife and son are entitled to joint occupation of the property, each is also entitled to one-half of the income of the estate. The trustees should retain and pay out of the income, before dividing it, the taxes and cost of ordinary repairs upon that property up to the time when the property is to be divided.
The widow is entitled to one-half of the income of the estate for life, and she is entitled to nothing except what is given to her by the will. The $200 exemption, as it is called, would be in conflict with the terms and provisions of the will.
In case the widow should die before the son reached the age of thirty years, her half of the income will go to the trustees, to be disposed of as they shall see fit.
If the son survive the widow and attain to the age of thirty years, one-half of the corpus of the estate will go to him under the provisions of the will. The corpus of the other half will, in case the widow should predecease the son, go, upon her death, to the trustees, to be disposed of as they may choose.
If the son die before reaching the age of thirty years and the widow survive him, by the terms of the will his half of the income is to go to the executors, to be disposed of as they shall see fit. But the testator makes no disposition in that case of the corpus, the half of the income of which is given to her. Although the legal title to that half of the corpus is in the trustees, yet
The income given by the will to the widow and the son is the income of the residuary estate. They are entitled to it from the death of the testator. Green v. Green, 3 Stew. Eq. 451. The proceeds of the sale of building stone taken by the executors' from quarries upon the testator’s land, which were opened before his death and never abandoned, are part of such income. Gaines v. Green Pond Mining Co., 6 Stew. Eq. 603.
The provision that, if for any reason such of the testator’s real estate as he has given the executors power to sell cannot be sold advantageously, the executors may mortgage it so far as necessary to pay borrowed money or to keep the property in good condition and repair, has no reference to the payment of money borrowed by the testator himself, but refers to such money as the executors may find it necessary to borrow for the preservation of the estate. They are empowered to borrow money upon mortgage of the property to pay borrowed money or to keep the property in good condition and repair.
The will provides, in the first section, that all of the testator’s just debts and funeral expenses shall be paid by the executors, and after the specific gift to his wife, he gives all the residue to the executors. He does not charge his debts, or any of them, upon his real property, in exoneration or in relief of his personal estate. The power to mortgage is not given in connection with any provision for or any reference to the payment of his debts, but in connection with the sale of his real estate. In view of the fact that the executors may not be able to sell advantageously
The interest upon such mortgages should be paid out of the income of the estate. The object in providing that the money may be raised upon mortgage is to relieve the income for the time being of the burden of large expenditures for repairs &c., which otherwise it would have to bear. There is no evidence that the testator intended that the interest should be paid out of the corpus of the estate. The testator’s indebtedness for borrowed money is to be paid in the same way as his other debts. The executors should use their discretion as to selling that part of the real estate which they are empowered to sell. There is no absolute direction to convert the property into money, but merely authority to them to sell it if they see fit.
The gift of income, after the death of the widow, to the executors, to be used as they may choose to dispose of it, and the gift of the estate to them in the event of the son’s death before he is thirty years old, and after the death of the widow, to be disposed of as they may choose, and the gift of half of the corpus of the estate after the death of the widow, in case the
The testator requests and empowers the survivor or survivors, in case of the death of any of the executors, to appoint other executors to fill any such places as may be thus made vacant by death, until the will shall have been wholly executed. The person or persons who may be thus appointed will not only take the place of the deceased executor or executors, so far as the duties of executorship are concerned, but will be clothed with the trust estate in the place of his, her or their predecessor or predecessors.