Row's Executors v. Roe

21 N.J. Eq. 253 | New York Court of Chancery | 1871

The Chancellor.

The only duty of the court in this casé is to guard the interest of Mrs. Oox and the infant defendants. All the others are willing that the executors should immediately divide and pay over the residue of the estate in their hands, equally among the nine children; the sum 'invested for the widow to be divided in like manner, at her death. This would, no doubt, be the best settlement of the whole matter, were it not tliat the infants may have rights arising from the plain intention of their father to provide for their support until all became of age out of the bulk of his property before it was divided. Ho supposed he had secured the co-operation of his widow in this, by cutting off her children from all interest in his estate in case by her marriage she broke up the homo he provided. He declared this trust should last until his widow died or married, or until his children were all married or of age. He provided for these cases; but he did not foresee that the tnist might, in part at least, be frustrated by the refusal of his wife to accept its provisions in lieu of her dower, and made no provision for that case. The widow, for herself, had a perfect right to elect to retain her dower. The amount she receives may bo, so far as she is concerned, more valuable' and of longer duration than the provisions of the will. But neither her choice, nor the release of the contingent limitation in case of her re-marriage, can divest any substantial right given by the will to her children and vested in them. She may render it difficult or impossible to carry out the provision in the way intended by the testator, but it is the duty of the court to protect these rights and have them carried out, if not in the precise mode directed by the testator, yet as near that mode as practicable.

For the children of his second wife the testator intended two things: first, to provide them a home with and under the care of their mother until the youngest became of age, to the extent of the sums provided, to wit, $9500 and his household furniture; secondly, to provide them with sufficient and comfortable support, to the extent of that investment for a home, and of the interest on all the residue of his estate, if the farm provided was insufficient. To his other children ho only intended to give an equal share of the residue of his estate, including accumulated interest, after this trust should terminate; it could last until the youngest child came of age, and no longer. If these children receive this they will receive all that their father intended for them. A benefit intended for them in case of the marriage of the widow they have voluntarily renounced, but they are still entitled to their equal share upon her death or marriage. I see no claim that these four children have to an equal distribution of the estate now, so as to defeat the right of the others- to support out of the estate provided and intended to be given by their father.

The rights of the five children cannot be lost or forfeited by the conduct or default of their mother, and they should be secured to them in such way as is practicable, but without infringing on the rights of - the other four children. So far as these rights are infringed by the renunciation of their step-mother, they can have no relief.

It is possible that a home might yet be furnished for these children with their mother in the manner directed by the will, provided she would agree to live with them on the farm, and provide for her own maintenance and support out .of her own means. It is the provision for her support, .and not her living in the same home with her children, that are given in lieu of dower, and forfeited by her reimnciation. But this can only be done by arrangement of the parties, and not by direction of the court.

I must regard the- case as if the intention of providing a-home for these children is defeated, and consider whether the provision for their support is frustrated thereby. This provision is clearly declared by the will, and there is no forfeiture of it declared, either directly or by inference, on account of the refusal of the widow to accept the provisions for her. The amount set aside for the support of the children, Mrs. Roe and Mrs. Gox, by providing a farm, its stock and utensils, and the household furniture, was $9934.56. Of this, one-seventh may be considered as intended for Mrs. Roe, and one-seventh for Mrs. Cox; the rest to the five children, or such of them as remain unmarried. And it is just and equitable that this amount, if it cannot be appropriated to the support of these children in the way directed by the w-ill, should be applied to that object in the way in wliicli it can be done, by directing the interest to he paid for that purpose.

The residue of the principal must be kept invested until the time for distribution directed by the will, that is, the termination of the time by the youngest child becoming of age, or by the death or marriage of the widow.

Out of the interest of this residue these children may be entitled to aid in their support, In what case and to what extent they may ho entitled to such aid, it may he very difficult to determine, and it is not necessary now to lay down any rule; it is enough for the matter now before me, to determine that they may be entitled to it. The executors have then no right to distribute that fund and deprive them of the possibility of such aid.

In my opinion, the five children of Mrs. Roe, or such of them as remain unmarried, are entitled to the interest of five-sevenths of the sum of $9934.56, set aside for this trust, until the termination of tlio trust; and that Mrs. Cox is entitled to the interest of one-seventh during her widowhood, the same to go to the five children in case her right expires before the termination of the trust.