81 N.J. Eq. 348 | New York Court of Chancery | 1913
Complainant is a judgment debtor and seeks to enjoin a sale under an execution issued upon the judgment. The execution
It is averred in the bill that the interest of complainant in the real estate levied on arises under the will of her husband. By that will complainant is given the income of the estate, including the income of the land in question, during her life. A.t her decease the corpus of the estate is given to children of testator. The provisions of the will in favor of complainant are as follows:
“I order and direct that my estate be kept intact as nearly as possible in order that the income derived therefrom may be enjoyed by my wife, Ella Smith, during the term of her natural life, and I devise and bequeath to her all the income from my estate for that period.”
'Yo trustee is named in the will.
It is contended in behalf of complainant that under the provisions of the will of her husband her estate in the land which has been levied on is a purely equitable estate and cannot, in consequence, be levied on and sold by process of'execution issued from a court of law. This court is on that ground asked to enjoin the sale and thus prevent the sale from creating a cloud upon the title of complainant. Succinctly stated the claim of complainant is, that the will of her husband bestows upon her only the right to receive the income of her husband’s estate during her lifetime and that such an estate is an equitable life estate and, as such, cannot be sold under legal process without the aid of this court. Defendant claims the complainant has a legal estate in the lands which is subject to levy and sale under his execution.
In this jurisdiction it has been repeatedly and uniformly held that in the absence of fraud, gross injustice, irremediable injuiy or other ground of equitable jurisdiction, a court of chancery will not restrain a threatened sale under execution against one person of property claimed by another person." These decisions are collected in West Jersey and Seashore Railway Co. v. Smith, 69 N. J. Eq. (3 Robb.) 429. It will be observed that the cases there cited have uniformly arisen in instances in which
I will advise an order dismissing the order to show cause.