41 N.J. Eq. 14 | New York Court of Chancery | 1886
Adam Rienaker, late of Newark, deceased, died January 12th, 1871. By his will, dated July 26th, 1854, he provided as follows:
“First. My will and desire is that all my property, both real and personal, shall be for the sole use and benefit of my wife Julianna, after my decease; and in the event of her death, then, what shall remain, to be disposed of in the manner following, viz., the whole to be disposed of as shall to my executor or executors seem best, and the profits or proceeds thereof to be equally divided between Maria Schumann, Margaretta Schumann, John Schumann, Eurieh Schumann, Caspar Schumann, Bastian Rienaker and Falden Rienaker, brothers and sisters of myself, and my wife Julianna; and lastly, I do hereby appoint Francis Kornayer and Lawrence Henninger to bé my executors, to carry out my wishes and desires as herein expressed.”
The will was proved by Henninger alone, January 24th, 1871. He was, on his mvn application, discharged as executor February 24th, 1885. On the 28th of that month Kornayer renounced
The first question propounded is, What is the estate of the widow under the bill ? The gift to her is not of the property, but only of the use and benefit of it. The testator says it is his will and desire that all his property, real and personal, be for her use and benefit, and in the event of (by which is meant upon) her death, the,whole is to be converted into cash and the proceeds divided equally among the persons whom he names. The case differs, essentially, from those of which Annin v. Vandoren, 1 McCart. 135, is an example, in which the estate is given absolutely in the first instance, with absolute right of disposal, and then there is a gift over, at the death of the legatee, of so much as may then remain unexpended; for here the gift is only for the life of the primary legatee, with remainder absolute to the others. The will gives to the widow no power, express or implied, to dispose of the property, or any part of it, in any way. At her death, the whole of it is to be '■converted into cash and divided among the other legatees. The testator indeed uses the qualifying words, “ what, shall remain,” but he probably used them in view of the fact that some of the personal property was of a consumable character.
The next question is whether the administrator cum testamento annexo has power to sell the land. If the power were merely to sell the property and divide the proceeds, it could lawfully be exercised by the administrator with the will annexed. Rev. p.398 § 11; Howell v. Sebring, 1 McCart. 84. But, although the direction to convert is absolute, it is coupled with a trust or confidence in the executors who are to sell as “ may seem best. ” to them; that is, they are to exercise a discretion in making the sale. This is a personal trust and confidence which does not devolve upon the administrator with the will annexed. The administrator cannot execute the power. Chambers v. Tulane, 1 Stock. 146; Brush v. Young, 4 Dutch. 237; Lanning v. Sisters of St. Francis Hospital, 8 Stew. Eq. 392, 440.
Another question presented is, whether the death of a legatee
