27 N.J. Eq. 278 | New York Court of Chancery | 1876
This cause comes before .me on a re-hearing of a decree made therein on the advice of the late Vice-Chancellor. The principal question is as to the construction of a provision of •the will of Nicholas Swallow, deceased, by which he ordered .and directed that if either of his sons should die without leaving lawful issue, the widow of the decedent should receive .one-third of the rents of the real estate devised to him by the will, so long as she should remain his widow, and that after her decease the real estate given to such decedent should be .equally divided .among all the testator’s children then living. Enoch, one of the testator’s sons, died after the testator’s ■death, leaving no lawful issue, but leaving a widow, the complainant. She, however, was not the wife of Enoch at the .time of the making of the will, or at the testator’s death. At both of those dates, Enoch’s first wife was living. The defendants insist that the complainant is not entitled to the pro
The objection of non-joinder is not well taken. The testator’s other son, William, was not made a party to the suit. As far as the complainant’s rights are concerned, the interest of William is represented by the defendants. Sweet v. Parker, 7 C. E. Green 453; Voorhees’ Ex’r v. Melick, 10 C. E. Green 523. No defendant, except the administrator eum testamento annexoof the testator, objects on account of the absence of William as a party. His presence as a party is not necessary to the-establishment of the complainant’s right as against the administrator. Nor is there any error in the conclusion reached by the Vice-Chancellor as to the persons who are liable to pay the rent to the widow since she has been out of possession. Being out of possession, she is entitled to the one-third of the rents at the hands of those who had the right of possession,,