Smith v. Post

2 Edw. Ch. 523 | New York Court of Chancery | 1835

The Vice-Chancellor:

Under the devise of the residue of the rents and profits, after the one thousand dollars annually is taken out of the same for the widow of the testator, I am of opinion that the children of the testator, namely, Mrs. Ritter, Mrs. Douglass, John I. Post, Peter R. Post and William Post, take life estates in the lands as tenants in common, with benefit of survivorship or cross-remainders for life, in the event of one or more of them dying without lawful issue. The words “or their legal heirs according to the terms hereinafter named,” are, in this will, words of purchase and carry the remainder in fee to the children of the devisees above named: Crawford v. Trotter, 4 Mad. C. R. 361; Jeffery v. Honywood, Ib. 398.

This is manifest from the two next clauses of the will, in which the testator gives the share of any one dying without lawful issue to the survivors and then “ in case any or either of them ” (the five children) “ shall die leaving lawful issue, the part or parts which such, &c. would have been entitled to, shall make a share or shares, part or parts for his, her or their children.” Here the word “ children ” is used as being the legal heirs referred to in the devising clause ; and they are to take substitutionally. The devise to them is of a distinct estate in their own right; hence, the first must be deemed a life estate in the testator’s five children respectively ; and the second, which is to their children, an estate in remainder upon the determination of the respective life estates in their parents. The persons entitled to this estate in remainder are all the children of the first takers respectively and not merely those who were born at the time of making the will or at the death of the testator: Crone v. Odell, 1 B. & B. 483; 3 Bro. C. C. 404, n. 2.

The title to the lands passed, in this case, by the devise of the rents and profits: see, Paterson v. Ellis, 11 Wend. 298, and cases there cited. It vested in the devisees and not in the executors.

The devisees, however, took the legal estate subject to the power of sale in the executors or trustees, which is a naked power in trust. When this power was executed, the proceeds belonged to the devisees for life in remainder, in like manner as the land ; and the directions for distribution appear to conform thereto and to carry out the intention of the testator in that respect.

The proceeds of the Broad Street house and lot, after paying off the legacy of two Hundred and fifty dollars and setting apart one sixth for the widow, stands upon the same footing as the proceeds of the other parts of the estate sold since the widow’s death. The whole must be divided into five equal parts. One fifth part, with one fifth of the rents or interest and income since the death of Mrs. Ritter, now belongs to her children absolutely and is to be divided equally among them. One other fifth part, in like manner, belongs to and is to be divided between the five children of Mrs. Douglass. Another fifth part belongs, in like manner, to the children now living of John I. Post and to the children of the deceased daughter Sarah Vermule : these three children being entitled to their deceased mother’s share subject to their father’s right as tenant by the curtesy—for I consider that the proceeds of the real estate is still to be regarded as land in this distribution.

John I. Post had but a life estate under the will. His widow, Mrs. Agnes Post, has no right of dower in this share of the estate. Nor is the assignment made by way of mortgage of any effect beyond the rents, profits and income of the one third during, the life of John I. Post. Another one fifth part belongs to the children of Peter R. Post deceased; and is to be divided between them. Their mother, Mrs. Ann Post, has no right of dower in it. And so with respect'to the mortgage given by him’to Mrs. Ritter, it only operated upon his share of the rents and income so long as he lived. The remaining one fifth, the trustees are to hold and invest for the benefit of William Post during his life. At his death without a child or children, it will belong to the children of his deceased brothers and sisters and must be divided among them in like manner as above, each set of children taking one fourth per stirpes or by representation.

With respect to the shares of those who are infants (in this general distribution or settlement) the trustees will be safe in paying the money to their general guardian ; and if they have no guardians, their shares may be paid into court where it can be invested until they come of age.

The shares belonging to femes covert may be paid over upon the joint receipts of themselves and husbands, provided they are of age.