47 N.J. Eq. 356 | New York Court of Chancery | 1890
This is a contest between heirs at law and next of kin, and the principal question to be decided is, which set of claimants are-entitled to the property in dispute ? The facts necessary to be considered in deciding this question are the following: George W. Greenmyre died testate in September, 1876-. His will bears-
“to carry out the directions and bequests of this my will; and I hereby authorize them to sell at public or private sale, and upon such terms, at such times, and for such prices as they may think best, all my real estate, and to give deeds for the same.”
He next directs his executors to pay the net income of his estate to his wife for the joint support of herself and his son, until his son shall arrive at the age of twenty-one years. He then makes a gift of all his estate, real and personal, to his wife and her heirs in case his son shall die before he attains twenty-one years of age. And then his will says;
“ When my son attains the age of twenty-one years, then I desire my executors to take from my estate the sum of §10,000, and the residue of my estate pay over or convoy to my son. Said sum of §10,000 I direct my executors to invest, and keep invested, and the interest and dividends arising and accruing therefrom pay over to my son, but not to any creditor or assignee of his, upon his sole and personal receipt, during his natural life, and at his death pay said sum of §10,000 to his children.”
This is the whole of the will except the clause by which the widow and Edmund D. Halsey were appointed executors. The widow renounced, and Mr. Halsey proved the will alone.
The testator died possessed of a very trifling amount of personal property, but he held title in his own right to two parcels of land. The executor conveyed one of the tracts, in 1880, for $165, and the other, on the 20th day of August, 1888, for $17,500. But the tract last conveyed was subject to a mortgage for $6,000, made by the testator, so that the amount realized from that tract, for the estate of the testator, was only $11,500. The testator’s only child was born on the 13th day of May, 1863, and consequently attained full age on the 12th day of May, 1884. He died intestate on the 27th day of August, 1888, more than four years after he had attained full age, and only seven
The land was sold pursuant to the direction of the testator. It is true, in that- part of his will in which the testator gives direction as to the disposition to be made of his land, he does not give an imperative order for its sale, but simply authorizes his executors to sell it, yet, by a subsequent direction which he gave,, he made it impossible to execute the principal provision of his willy as he manifestly intended it should be executed, until his land was sold. The provision here referred to is that in which the testator orders his executors, when his son attains twenty-one years of age, to take $10,000 from his estate and invest it, and pay the income arising from it to his son during his life, and the principal to his children on his death. In view of the fact that the estate consisted entirely of land, and that the land could not, without sacrifice, be sold in parcels, and was only worth about
No doubt can, therefore, be entertained, I think, that the money in dispute here must be regarded as having been converted from land into money by the direction of the testator, and that it must accordingly be held, in conformity to well-established principle, that so far as the testator has disposed of the money thus raised, it must pass to those who are entitled to take under his will as personalty and not as land. For, as the leading case on this subject declares, nothing is better established than this principle': that money directed to be employed in the purchase of land, and land directed to be sold and turned into money, are to be considered as that species of property into which they are directed to be converted. Fletcher v. Ashburner, 1 Lead. Cas. Eq. Am. ed.) 1120. This principle is the natural result of the dominion which the law confers upon every property owner, who is sui juris, over that which he owns in his own absolute right. He has power to do with his own whatever he pleases, so long as he
But the $10,000 stand in an entirely different situation. Though the land, which this sum represents, was changed, by a direction contained in the testator’s will, from land to money, yet it has so happened that his will does not, in the present situation of affairs, dispose of the money. The testator ordered the conversion for two purposes — first, that his son, during his life, might have the income arising from the money; and, second, that the principal on his son’s death might go to his son’s children. The first purpose has been fully accomplished. The second, however, has not been and never can be. The son died without
“ But that every conversion, however absolute in its terms, will be deemed to be a conversion for the purposes of the will only, unless the testator distinctly indicates an intention that it is, on the failure of those purposes, to-prevail as between the persons on whom the law easts the real and personal-property of an intestate, namely, the heir and next of kin.” 2 Jarm. Wills (R. & T. ed.) 216, 218, 623.
The American editors of Leading Cases in Equity (vol. 1 4th Am. ed. 1197) state the principle in this form’:
“The conversion of property, from one species to another, by the will of a testator, takes place only for the purposes of the will; and so far as those purposes do not extend, or, in so far as any of them do not take effect in fact or in law, the property is considered as remaining in its former condition, as it was in the hands of the testator, and passes accordingly.”
This principle has been recognized by the court of errors and appeals of this state. The chief-justice, in delivering the opinion of that court in Lerch v. Oberly, 3 C. E. Gr. 575, 578, said : “ The principle is established by a multitude of cases, that where real estate is directed, either by .the owner or by the order of the law, to- be converted into money for a particular object, and a surplus remains after the accomplishment of such object, such surplus, as between the heir and the personal representative of such owner, will be regarded by a court of equity as land and will descend as such.” It is an obvious dictate of justice, as well as of common sense, that the direction to convert shall be held to have terminated whenever it becomes impossible to carry out the purpose for which the conversión was ordered, and that when the property, in its changed form, cannot pass by the will which directs its conversion, but must be transmitted by the law, it should go to
Adopting this principle as the rule of judgment, it is plain that the $10,000 must be held to be land, and as such must be awarded to the heirs at law. The conversion was ordered merely for the purposes of the will. That, in my judgment, is clear beyond dispute. The will contains not the least trace or indication that the testator meant that the nature of his property should be changed for any other purpose. As Lord Eldon, in substance, said in his masterly argument in Ackroyd v. Smithson: It is not necessary for the heir, in a case like this, to deny that the intention of the testator designed him nothing; his intention has certainly been equally unpropitious to his next of kin; but, to disinherit the heir, it is not enough to show that the testator did-not intend that he should take, but to do that it must be shown that the testator made a disposition in favor of another. It is-both unnecessary and unimportant in this ease to decide whether the property in question first passed to the testator’s son, and then, on his death, from him to the complainants, or directly from the testator to the complainants. No matter what its course-was, there can be no doubt, according to the principle which determines its nature, that it passed as land, and as the defendants-are not of the blood of the person from whom it came, they cannot take it. Land, in its devolution by descent, always follows blood.
The case thus far has been dealt with on the foundation on-which it is presented in the pleadings. The defendants, by their answer, admit that, in the actual state of affairs which has-occurred, the testator died intestate as to the $10,000, and the argument originally made proceeded on that basis. Since then a further argument has been made, in which it was contended that the testator did not die intestate as to the $10,000, but, as that sum was not well disposed of by the will, it passed, under a well-settled rule of construction, to his son by force of the gift of the residue made to him. There can be no doubt that, according to an established canon of construction, the residuary legatee is entitled, unless a contrary intention be manifested, to take all
Taking this rule as the guide, I do not think it can be held that the $10,000 passed to the testator’s son as part of the gift ■of residue made to him; on the contrary, I think it is clear, •beyond dispute, that the testator meant to exclude the $10,000 from his gift of the residue, and that he has said so in language ■so simple and direct as to exclude all possibility of doubt as to his meaning. The gift of residue is made in these words:
“ When my son attains the age of twenty-one years, then I desire my executors to take from my estate the sum of §10,000, and the residue of my estate pay or convey to my son.”
The complainants are entitled to the $10,000. As each of the two sets of claimants have been partly successful, I think neither should be allowed costs against the other. The executor should, however, be allowed costs. The complainants, by their bill, impugned his conduct, and thus compelled him to answer in order to defend himself. But for this he might have remained silent with propriety. I think he should, therefore, be allowed his costs out of the sum awarded to the complainants.