Wood v. Cone, 7 Paige Ch. 471

Wood v. Cone

7 Paige Ch. 471 | New York Court of Chancery | 1839

The Chancellor.

If the interest upon the bond and mortgage, which accrued after the death of the testator’s widow and before the death of the daughter, is not legally and effectually disposed of by the will in the event which has happened, it unquestionably belongs to the husband and not to the children of Mrs. Cone. Upon the principles of equitable convérsion the proceeds of the real estate directed by the testator to be sold is only considered as converted into personalty for the purposes of the will. And if any estate or interest in this converted fund was not legally and effectually disposed of by the will, there was a resulting trust, as to such estate or interest, in favor of Mrs. Cone, as the heir at law of her father. (Hopkins v. Hopkins, Cases Temp. Talb. 51.) In the language of Lord Eldon, “ where land, such as would descend to the heir at law, is undisposed of by the will, the heir at law shall have the benefit of all that is not disposed of. And if the testator has disposed of the legal interest but not the beneficial, then the heir at law shall take by a resulting trust all the benficial interest which is so undisposed of.” (3 Dow’s Rep. 209.) Neither does it. make any difference in the present case, if the interest is not disposed of by the will, whether such interest is considered as the real or as the personal estate of Mrs. Cone as the heir at law. If it is considered as the rents and profits of real estate, then the husband is entitled to it by virtue of his marital rights ; as he was entitled to the income of all her real estate during their joint lives. And if it is considered as personal estate of the wife, then upon her death he became entitled to it under the statute of distributions, which *477gives all the wife’s personal estate to the husband where he survives her. It therefore becomes necessary to examine the provisions of this will for the purpose of ascertaining whether this interest was intended to be disposed of by the testator in the event which has occurred.

It is very evident that the claim of the husband of this interest, as it was made by him during the life of his wife, cannot be sustained. This bill was therefore properly filed to foreclose the mortgage, for the nonpayment of the interest which had then accrued. And if he is now entitled to the interest which was then due he became entitled to it in con* sequence of the subsequent death of his wife. It was unquestionably the intention of the testator that the interest of the fund, after the death of the widow, should accumulate during the joint lives of Cone and wife, and that the same should be applied for her support and maintenance during her widowhood if she survived him. And the testator did not intend merely to give her the interest which should accrue during her widowhood for her support, leaving her husband to take the interest during his life by virtue of his marital rights. I think the language of the will on that subject is too explicit to be misunderstood. He directs that immediately after the death of his wife all the monies then remaining shall remain at interest as before stated, (that is, upon landed security,) and that the interest shall be appropriated to the support and maintenance of his daughter, in case she should be left a widow, and from that time for and during her natural life or until she shall marry a husband : that is, the interest from and immediately after the death of the testator’s wife, and also the interest from the time his daughter shall be left a widow, is to be applied to the support of the daughter during her widowhood, in case she shall survive her husband and thus be left a widow.

Whether the testator contemplated the event which has actually happened, and intended to dispose of the whole of ' the accumulated fund among the children of his daughter in case she survived her mother and died in the lifetime of her husband, so that no part even of the interest would be wanted for her support during widowhood, is a matter of

*478more doubt. Upon an examination of the several provisions of the will, however, I have arrived at the conclusion that he did contemplate that event, and intended in that case that all the monies then due and remaining, whether for principal or interest, should be paid to the children or legal heirs of the body of the daughter. The direction to apply the interest for the support of the daughter is only a direction so to apply it in case she shall be left Cone’s widow; in which event a part of the principal also, if necessary, is to be applied for the same purpose. This clearly shows the testator did not take it for granted that she would want this provision for her support, but that he contemplated it merely as a possibility and provided for it accordingly. It is therefore a direction to keep the money at interest, from the time of the death of the testator’s wife, and to support his daughter out of the interest, during her widowhood, in case she survive her husband, and to apply a part of the principal for that purpose if necessary; and to give the residue of the fund to her children or issue upon her death or remarriage. There is therefore no part of the testator’s estate which was not effectually disposed of by the will, and the husband is not entitled to the contingent interest of his wife to a support out of the rents and profits in case she should be left a widow.

At the death of Mrs. Cone each of the children then living took a vested interest in an undivided share of the fund, including the interest thereon from the death of the testator’s widow. There is an immediate gift to the children or heirs of the body of Mrs. Cone at that time; although the payment is postponed until the males arrive at the age of twenty-one, and the females at the age of eighteen respectively. There is therefore an implied direction to the executors to keep the share of each invested, so that it may continue to accumulate until the time of payment as prescribed by the testator arrives. And if any of them should die in the mean time, his or her share will go to the personal representative of such deceased child.

As this is an amicable family suit, and the mortgagor is bound to support his children out of his own property if he *479has the means of doing so, and as he has probably withheld the payment of this interest under an honest belief that he was entitled to the same in right of his wife, I shall not charge him with the costs of this suit, provided the arrears of interest on his bond and mortgage are paid within three months. In that case the complainants are to pay the costs of the guardian ad litem of the infants, and to retain their own costs, out of the said interestsbut even in that case the usual decree will be entered, authorizing the complainants to proceed upon the foot of this decree if default shall hereafter be made in the payment of interest or principal. If the arrears of interest are not paid within the three months, there must be a reference to a master to compute the amount due and to ascertain whether the premises can be sold in parcels ; to the end that upon the coming in of that report the usual decree for a sale to pay the debt and the costs of foreclosure may be entered.