40 N.J. Eq. 33 | New York Court of Chancery | 1885
Albert J. Whittaker, deceased, late of Trenton, died March 28th, 1884. By. his will, dated July 17th, 1883, after ordering
“ After the decease of my said wife and niece, I give my estate to my lawful heirs, to be divided equally among them, share and share alike ; the law
He then appointed his brothers Wesley and George executors.
The questions submitted are the following: Whether the testator, in the gift of his estate to his lawful heirs &c. after the death of his wife and her niece, intended to postpone until the death of those latter persons, the enjoyment of so much of the property as was not to be held for their benefit, and, if so, whether such postponement of enjoyment extends to the income as well as the corpus, or whether it affects the latter only, and whether, seeing that the executors are possessed of a mere power of sale of the real estate, the heirs-at-law of the testator are not now entitled to that property, subject to the use and enjoyment of the residence by the testator’s widow, according to the provisions of the will.
The testator’s real estate, at his death, consisted of unimproved land, valued at $15,000, and his residence, valued at $12,000. His personal estate, including the six hundred shares of the stock of the railroad and canal company, was appraised at $281,067.88. So that his property, altogether, was valued at $308,067.88. Deducting therefrom the special legacies, $70,000, the value of six hundred shares of the stock, $114,000, and the estimated value of the residence, $12,000, altogether $196,000, there is a residue of $112,067.88, including the estimated value, $15,000, of the unimproved real estate. Deducting that, there is left a residue of $96,067.88 of personal property.
That the testator did not intend that the residue remaining after deducting the special legacies and the six hundred shares of stock, should be distributed immediately, is very clear, for he provides that the taxes and the cost of insurance and repairs of his residence shall be paid, during his wife’s lifetime, out of his estate; that is, that those expenditures shall be made out of that residue.
But, further, he bequeaths to his brothers and sister certain large sums of money, giving as a reason for bestowing $5,000 more upon George than upon any of the others, that George
Nor are they entitled to the income thereof. The residuary gift in this case carries with it the intermediate income. And if the real and personal estates are blended in one gift, it is considered to denote an intention that both species of property shall be subject to the rule applicable to personalty. 2 Jar. on Wills (R. & T. ed.) 245, 846; Gibsons v. Montfort, 1 Ves. Sr. 485; Genery v. Fitzgerald, Jac. 468; Glanvill v. Glanvill, 2 Mer. 38; Ackers v. Phipps, 3 Cl. & Fin. 665; Lachlan v. Reynolds, 9 Hare 796 ; Van Kleeck v. Reformed Dutch Church, 6 Paige 600.