Torrey v. Torrey, 55 N.J. Eq. 410

Grey, V. C.

The complainant files her bill as executrix, setting forth the will. She claims that under the words of the will, “ I give and bequeath to my dear wife, Martha Torrey, all of this world’s goods of which I may be possessed at the time of my death ” &o., she became, upon the testator’s death, sole devisee of the testator’s real estate. It is obvious that whatever was included as the subject-matter of the gift in question, the capacity in which the complainant claims to have received it was in her personаl and individual right, and not as executrix of the will. No estate is alleged to have vested in her as executrix, no power touching the real estаte, to be exercised by her as executrix, is set forth, nor is any duty in that capacity alleged to have been cast upon her by the terms of the devise. The face of the bill shows that she claims that by the words used the real estate of the testator passed by devise in fee to her in her own right, and that the heirs-at-law deny this claim and assert that the testator died intestate of his real estate, which descended to them in feе-simple.

The position assumed by the complainant as absolute owner denies any trust, either as executor or because of the аdded words of confidence &c. in the above-quoted clause of the will. The argument of complainant’s counsel is on the same ‍​​​‌‌​​‌‌​​​‌​‌‌​‌‌​‌​​​‌‌​‌‌​‌​​‌‌​‌‌​‌‌‌​‌‌‌​‌‍line, claiming for Mrs. Torrey an absolute estate in fee-simple in the testator’s lands.

Here is a statement of a dispute confined wholly to conflicting claims between different parties, each asserting a purely legal estate in lands, one as devisee in fee, the other as heir-at-law.

The power of courts of equity to construe devises of real estate is limited to such dispositions as create or involve the сreation of trusts. So far as a will of real property devises purely legal estates, and the devisees therein obtain purely legal titles to land, their enforcement belongs to the courts of law. Pom. Eq. Jur. § 1155.

The jurisdiction exercised by courts of equity in construing devises of lands is incidental to its gеneral jurisdiction over trusts and the performance or enforcement of trusts, either express or implied; and a suit in equity of this charactеr can only be maintained by some party directly interested in the trust under the will, and not by a devisee of a mere legal title. Pom. Eq. Jur. § 1156.

The case of Benham v. Hendrickson, 5 Stew. Eq. 444, contains a declaration to the effect that the uncertainty of devises of itself furnishes sufficient reason for recourse to equity for construction; but an еxamination of the facts exhibited in that case shows that the bill was filed by the holders of a title under a will against an executor of that will, who had mistаkenly exercised a power of sale by selling their lands and was about to pay over the proceeds, and was proceeding to sell other of their lands not authorized to be sold by the power, and thus to create a cloud upon their title. The court held that there wаs no adequate remedy at law, and granted an injunction restraining the further unauthorized exercise of the power. It will be seen that the facts in the case fully warranted a restraint upon the executor in the exercise of the power entrusted to him for the settlement of the estate, and did not call for the declaration of unlimited equitable jurisdiction over the construction of wills of real estate, upon the mere ground of the uncertainty of a devise. This declaration must be read in the light of the facts then before the court in the case then under сonsideration.

In Youmans v. Youmans, 11 C. E. Gr. 149, a bill was filed by executors for construction and directions in the exercise of a power ‍​​​‌‌​​‌‌​​​‌​‌‌​‌‌​‌​​​‌‌​‌‌​‌​​‌‌​‌‌​‌‌‌​‌‌‌​‌‍of sale of so much land аs might be necessary to settle the estate, and was entertained.

In these cases, so far as the question of title to lands was brought before the court, it came as necessarily attendant upon the determination of a dispute involving some branch of undoubted equitable jurisdictiоn for direction or restraint in' the exercise of a trust or trust power.

In the lata case of Dunn v. Casperson, 15 Stew. Eq. 91, a construction of a devise was refused to an administrator cum testamento, upon the declared ground that, as administrator with the will annexed, he had nоthing to do with the construction of the devises in the will.

In New York the doctrine was explicitly declared by Chancellor Walworth, in the leading case of Bowers v. Smith, 10 Paige 199, that neither the heirs-at-law nor the devisees who claim mere legal estates in the testator’s real property, can file a bill fоr the sole purpose of obtaining ‍​​​‌‌​​‌‌​​​‌​‌‌​‌‌​‌​​​‌‌​‌‌​‌​​‌‌​‌‌​‌‌‌​‌‌‌​‌‍a judicial construction of his will.

In Onderdonk v. Mott, 34, Barb. 112, the supreme court of New York, sitting in equity, determined that the difficulty of want of jurisdiction in equity to construe a will at the instance of a devisee claiming a mere legal estate in real property, was insuperable, if it existed, even if not raised by the opposing party.

The court of appeals of New York, in Bailey v. Briggs, 56 N. Y. 413, approved of lhe doctrine as stated in .Bowers v. Smith, ubi supra, holding the jurisdiction to be incidental to that over trusts. This view has been consistently supportеd by the court of last resort in New York, in Chipman v. Montgomery, 63 N. Y. 230, and Post v. Hover, 33 N. Y. 602.

In Dill v. Wisner, 88 N. Y. 160, the court of appeals declared that the right of an executor to sue “ for construction оf a will of real estate depends entirely upon the question whether he is invested with a trust under the will in reference to the subject-matter of the devise, and it is only in such cases that a court of equity, on the assumption of its right of supervision over trusts and trustees, will assume jurisdiction.”

There are sоme decisions which appear to extend the equitable jurisdiction so as to include cases where the terms of a devise are diffiсult or doubtful, or of contested validity, irrespective of the existence of any trust relating to the property. ‍​​​‌‌​​‌‌​​​‌​‌‌​‌‌​‌​​​‌‌​‌‌​‌​​‌‌​‌‌​‌‌‌​‌‌‌​‌‍Most of these cases will, however, be found to present some question of undoubted equity jurisdiction and to have brought in the determination of the legal title to lands as neсessarily incidental to the equitable relief sought.

The generally-accepted doctrine is that above declared, and is consistеnt with the long-established rule that the forum in which to settle the legal title to lands is a court of law.

In the case under consideration the bill is filed by the сomplainant as executrix, but she shows no trust or other duty cast upon her as executrix, touching which she might ask to be instructed. As executrix she has neither title to lands of the testator nor any other interest in them. She shows no right as executrix to ask for the construction of this will, and she asks no instructions as to her duty as executrix. Casperson v. Dunn, ubi supra; Baxter v. Baxter, 16 Stew. Eq. 85.

In the prеmises of her bill she alleges that she is a devisee in fee of the lands of the testator and that the heirs-at-law deny her claim, and here she аsks what is really sought by the bill, namely, a construction of the terms of the will as to what is included within the words “ I give &c. to my dear wife &c. all of this world’s goods ” &c., alleging that these words sufficiently describe a dеvise of all the testator’s real estate.

Assuming that the complainant is, as she asserts, the absolute owner as devisee of the lands of the testator, she asks a court of equity to construe a devise in a will ‍​​​‌‌​​‌‌​​​‌​‌‌​‌‌​‌​​​‌‌​‌‌​‌​​‌‌​‌‌​‌‌‌​‌‌‌​‌‍which she alleges passes to her a purely legal estate. She sеeks this relief against heirs-at-law, whose estate in the decedent’s lands must be a legal estate.

Upon the case presented by the complainant’s bill her remedy should be sought at law and not in equity.

Case Details

Case Name: Torrey v. Torrey

Court Name: New Jersey Court of Chancery

Date Published: Feb 15, 1897

Citation: 55 N.J. Eq. 410

Court Abbreviation: N.J. Ct. of Ch.