Thomas Snell's Executors v. Snell, 38 N.J. Eq. 119

Thomas Snell's Executors v. Snell

38 N.J. Eq. 119 | New York Court of Chancery | 1884

The Chancellor.

This suit is brought to obtain a construction of the will of Thomas Snell, deceased, late of Middlesex county, who died September 1st, 1874. By the will (which was made in August, 1874), the testator, after directing payment of all his debts and liabilities, gives to his wife, for her life, his farm and household furniture, live stock and farm implements and everything mova*120ble or immovable in and about the farm then belonging to him.. To his executors he gives, in trust, $15,000, which they are to invest and keep invested during her life, and pay her the income thereof not exceeding $1,000 per annum. He then directs that after her death the farm and the $15,000 shall “revert” to his executors and “be disposed of by them'in the same manner as the rest and residue of his estate thereinafter mentioned.” He next gives to his executors, in trust for the benefit of his heirs-at-law, his sons Thomas, Robert, George and William, land in Westchester county, New York, and leaseholds in the city of New York, with power to convert them into money at any time before the estate shall be divided, and whenever, in their judgment, the estate will be benefited by the sale. He then gives to his executors, in trust for the benefit of “said heirs-at-law” (his sons), all and singular the rest and residue of his estate, “ both real and personal, consisting of bonds, stocks, notes and money and other securities,” and declares that it is his will that his *121estate shall not be divided or the heirs be paid their respective shares thereof until the youngest of them shall have attained the age of twenty-five years; and he further directs that upon the arrival of the youngest of them at that age, the estate shall then be divided among them in equal shares. He also directs that until such division or distribution shall take place, the executors invest and keep invested the money of the estate and accumulate it, and adds that they are not to pay away any portion of it except in the case of the illness or death of any of his “ said heirs-at-law,” in which event they are to have power to make such disbursements as in their discretion the emergency may require. He also provides that in case any of his “ said heirs ” shall die before the division of the estate shall take place, the share of such decedent shall, if he be married and have issue, go to the issue; but if no issue, then the decedent’s wife shall “ receive her dower out of said share, and the rest and residue shall revert to the surviving heirs.”

*122The questions submitted for decision are whether the executors have power to sell the farm; and if so, whether they can execute the power before the death of the widow, she being desirous that the sale be made and being willing to join with them in the conveyance or to convey or release her estate to them or the purchaser.

The testator intended to give his wife, for life, the farm (with remainder in fee to the executors), and $1,000 a year of the interest of $15,000; the rest of his property (except, of course, the $15,000) to go to his executors, to be converted by them into cash and invested for the benefit of his children, and to be equally divided among the latter when the youngest should have attained to the age of twenty-five years. At the death of the widow, whether, before or after the youngest child should have reached the age of twenty-five years, the $15,000 and the farm were to be disposed of in like manner with the rest of the estate.

The executors undoubtedly have power to sell the farm. The *123will provides that after the decease of the testator’s widow that-property is to “ revert ” to the executors and be disposed of by them in the same manner as the rest and residue of the estate thereinafter mentioned. It then gives to the executors the land and leaseholds in New York, with express power of sale. This is followed by the gift to them, in trust, for the benefit of the testator’s children, of all the rest and residue of his estate, both real and personal. This gift of the New York property and the residue is for the purpose of enabling the executors to take care of, invest and accumulate those parts of the estate and divide them when the time of distribution arrives. The gift is unqualified, except by the trust. Moreover, it is of personal and real estate blended together, to be divided and paid over in shares,, and in the meantime to be invested for accumulation.

"Where an executor is directed by the will or bound by law to-see to the application of the proceeds of the sale, and no direction-*124is given as to the person by whom sale is to be made, or if the proceeds of sale in the disposition are mixed up and blended with the personalty — which it is the duty of the executor to dispose of and pay over — then a power of sale is conferred by implication. Lippincott v. Lippincott, 4 C. E. Gr. 121. There can be no doubt that the executors have power to sell the farm, and I am of opinion that, with the consent of the widow, and on her releasing to them or to the purchaser her life estate, or joining with the executors in their conveyance of the property, they may lawfully convey the farm at once. The will provides that after the widow’s death the farm shall “ revert ” to them, and be disposed of by them in the same manner as the rest and residue of the estate thereinafter mentioned. The intention of the testator, in this provision, was to give to the executors the remainder in fee. And he intended that, after the termination of his *125wife’s life estate, whether by death or otherwise, the property should go to them. There is no evidence of any intention, on his part, that it shall be held unsold until after her death, for any reason, whether prospective rise in value, benefit 'of infant children or anything else. The possibility that the widow might desire to part with her interest in the property before her death, was not contemplated by him, and it seems clear that, had he contemplated it, he would have provided for the sale of the property by the executors and her together, or by them with her consent. In Uvedale v. Uvedale, 3 Atk. 117, where a testator,, by his will, directed that his wife should have the rents &c. of certain lands for her life, and directed that, after her death, the property be sold, Lord Hardwicke said that the words, “ after her death,” were not put in to postpone the sale, and directed that the sale be made. See, also, Co. Litt. 113 a note; 8 Vin. Abr. 466, 469; Sug. on Powers 349, 350. In Gast v. Porter, 13 Pa. St. 533, it was held that a power given to executors to sell at the death of the widow was well executed, if the widow, for whose benefit the sale was postponed, joined as one of the executors in the deed, and that the fee would pass to the purchaser. The decision was put on the ground that the intention of the testator governed the ease, and made it an exception to-the general rule, that a devise to executors to sell on a contingency cannot be executed until the contingency happens. And so, too, in Styer v. Freas, 18 Pa. St. 339. Mr. Ram, in his work on Assets, says: “ The rule to be deduced from the cases is that, where the property which is the subject of the power of sale is devised for life, the time for sale will depend on the intention to be collected from the whole will; and, so far as the particular words may not be governed by the context in the will, on the weight due to the authorities, grounded on the same or similar expressions, and, consequently, the time for sale may be either before or after the death of the tenant for life, according to the circumstances of the particular case.” Ram on Assets 108.

In the ease under consideration the testator gives a life estate to his wife with remainder in fee to his executors, and directs *126(substantially) that after her death they convert the property into •cash to divide it among his children. Here is not a mere power of sale, but a gift of the property to the executors in fee, subject to the life estate. The widow wishes to remove from the farm and desires to have it sold, if possible, and for that purpose is willing to relinquish her life estate and to convey it to the executors or to the purchaser, or any one else, in order to make a clear title to the property. George Snell is dead. He died since the testator’s death. He was never married and left no will. Thomas and William are both past the age of twenty-five years. The former is thirty-eight and the latter twenty-seven. Robert left his home in 1871 and has never since (a period of about thirteen years) been heard from, although much effort has been made to obtain tidings of him. He was then unmarried. If living, he is now about thirty-four years old. Thomas Snell and Maltby G. Lane are the executors. They are desirous of selling the property. A price is offered for it, which, in their judgment, and in that of William, also, is a good one, and they and he think it would be advantageous to all persons interested to sell it at that price. In my judgment, the executors, with the consent of the widow and her release of her life estate, have power to sell the property now.