Schermerhorne v. Schermerhorne

6 Johns. Ch. 70 | New York Court of Chancery | 1822

The Chancellor.

The defendant, as heir of Abraham. Schermerhorne, refuses to maintain Nelly, the lunatic, and is willing that the plaintiff should possess the estate, and support Nelly out of the rents and profits. But she claims the reversion, after Nelly's death, and denies any right to have the estate sold.

It is evident, that the house and three acres of land, (being all the estate remaining, chargeable with the maintenance of Nelly,) is insufficient to maintain her, and are in a ruinous situation. The only serious point in the case is, whether the premises can be sold for the purpose of the charge. The plaintiff, as executor, was authorized, in a certain event, to take possession of the estate. He has that possession $ and he was further authorized to lease, " or, by any other means, out of the profits therefrom arising,” to support and maintain JYelly, during her natural life. The great object of the will was the comfortable maintenance of that aiSicted and unfortunate daughter; and the testator has shown a strong solicitude on that point throughout the will. The estate is charged with her maintenance, and it must be made to effect that object, if it can be done, by any means to arise out of the profits.

The word profits, says Sir Thomas Plumer, in Allan v. Backhouse, (2 Vesey & Beam. 65.) does, ex vi termini, in-elude the whole interest, as a devise of the profits would pass the land itself | and it was held, in that case, that the words, rents and profits, extended beyond tlieir natural meaning, by a technical, artificial, but liberal construction, established by a long train of decisions, and were held to mean, not merely annual rents and profits, but a mortgage and sale, when the same was necessary to raise a gross sum, and thereby effect the testator’s object This extension of the word “ profits,” is supported by a series of authorities, from the case of Backhouse v. Middleton, as early as the 22 Car. II. (1 Ch. Cases, 173.) down to the present time } and most of them are noted in the learned review, taken by the Vice-Chancellor. (Lingon v. Foley, 2 Ch. Cases, 205. Trafford v. Ashton, 1 P. Wms. 415. Baines v. Dixon, 1 Vesey, 41. Green v. Belchier, 1 Atk. 505.)

The won’: profits,” i" devise, inciwterest.

Lord Hardwicke observed, that if there be no other words to restrain the meaning of “ rents and profits,” and confine them to the receipt of rents and profits, as they accrue, the Court, to obtain the end which the party intended, by raising the money, has, by the liberal construction of the words, taken them to amount to a direction to sell. The raising, by rents and profits, was the same as raising by sale, when there was nothing to exclude a sale though there was not one case in ten, as he said, where the Court had decreed a sale on the words rents and profits, that it had been agreeable to the testator’s intention.

In the present case, the testator, no doubt, had it in contemplation that the rents and profits of the farm, without a sale, would be sufficient to support the lunatic, and that the estate, after her death, would go to Abraham, Schermer.horne, and his heirs. But, his other intention was equally manifest, that his daughter must, at all events, be comfortably maintained out of the profits or proceeds of the farm; and he expressly authorized “ any means” by which the farm was to produce the requisite “ profits.” And, if that end cannot otherwise be obtained, it is the duty of the Court, in obedience to the long and uniform course of authorities, and to the necessity of the case, to direct a sale of the farm.

I shall, accordingly, declare, that the estate, in the pleadings mentioned, is charged with the comfortable and reasonable maintenance of JYelly S.; and that, if the farm will not, upon lease, jdeld profits sufficient for that purpose, the same may, and ought to be sold, and the proceeds applied for her support; and that a master be directed to inquire, and report, what annual sum is requisite for the comfortable and reasonable maintenance of JYelly S., and what is the net value of the yearly rents and profits of the estate, as the same now exists, and may be rented.

Decree accordingly.