1 N.J. Eq. 314 | New York Court of Chancery | 1831
There is no difficulty, as I think, in establishing the relative rights of the parties, or in determining that the complainant is entitled to relief.
1. As to the estate of the defendant. Under the old cases, and as the law was formerly understood, I presume it would be considered an estate tail. More modern decisions have varied the rule, and the current of authorities is now the other way. The terms “leaving no issue living,” are now taken to mean a failure of issue at the time of the death of the devisee, and not an indefinite failure of issue ; and consequently the estate, instead of being an estate tail, must be taken to be a contingent fee with an executory devise over.
But this is not very important to t he rights of the parties; for whether it be the one or the other kind of estate, the power of the devisee over it is precisely the same : he has no right to commit waste, so as to destroy the inheritance.
2. The legacy is a charge upon the estate of the defendant, not upon his person nor upon the land. If, therefore, the estate should cease before the legacy is paid, the land would be discharged from all liability or claim.
3. Although the devisee is not personally liable, yet the nett annual profits of the estate, if any, are to be appropriated yearly to the payment of the legacy. Such was, no doubt, the intention of the testator, and such is the reason of the thing. The
4. Whether the annual profits of the estate will equal the chaige, is not material to the complainant, standing simply as a legatee, tehe is entitled to have her money • and if the devisee does not, or cannot pay it, in exoneration of the charge, the estate must satisfy it in some way. The legacy is absolute, and does not depend upon the annual value of the estate.
5. The nett profits of the estate, after giving to the devisee a fair and proper support out of the property, being liable for the payment of the legacy, if they have come into the hands of the defendant, he is liable personally to account for them. He must be considered as holding them in trust, and responsible over in this court to the person beneficially interested.
Such I take to be the situation and relative rights of the parties.
There is some difficulty in directing the mode of relief to which the complainant is entitled. To sell the whole estate, might be to sacrifice it, to the injury of all the parties ; and besides, the whole of the legacy will not be due in some years, and the party has no right to call for it until it is payable according to the terms of the bequest. To sell a part of the estate every year, might be still more injurious. If it be true, as stated by the defendant, that there is such an abundance of wood and timber on the premises, as to admit enough to be cut down every year to pay the annual charge, and that without any injury to the land, that method might be resorted to with apparent propriety.
To enable the court to come to a just conclusion as to the facts, and to direct with more security the proper course to be pursued in reference to the whole legacy, I shall refer it to a master to enquire,
1. As to the amount of the annual nett profits that have come to the hands or use of the defendant, after making to him all just allowances for a fair and proper support out of the premises, from the time he came into the possession ; to the end that he may be personally charged with the same ; to be applied, fro tanto, to the extinguishment of the claim upon the estate.
2. To ascertain and report the quantity and amount of wood
3. To ascertain and make report of, the quantity, kind, and value of the timber and wood upon the said premises, and how much, as to quantity and amount, may be sold annually without prejudice; and,
4. To inquire and report whether, in case it should become necessary to sell any part of the piemises other than the wood and timber, the same or any part of it may be sold in parcels, and in what way most advantageously; or whether the estate is so situated as to render it expedient to sell the whole together, and what would be the probable value of said estate.
These facts being ascertained, the court will be enabled to give effectual relief as to the whole case. If, in the mean time, any waste should be attempted, the court will promptly interfere.
All further directions are reserved until the coming in of the report.
