Opinion
No. 43/615.
06-12-1918
ALBRIGHT v. VAN VOORHIS et al.
Charles A. Rathbun, of Morristown, for complainant. C. Franklin Wilson, of Morristown, for defendant Lilly Cook. Howard F. Barrett, of Madison, for defendants Fred Van Voorhis and others.
Bill by James P. Albright against Fred Van Voorhis and others to construe the will of Frederick Springer, deceased.
On June 4, 1883, Frederick Springer died leaving the following will:
I, Frederick Springer of Madison, Morris county, New Jersey, being of sound, memory and understanding do hereby make, publish and declare this to be my last will and testament in manner following that is to say.
First. It is my will that all my debts and funeral expenses be paid as soon as conveniently can be after my decease.
Second. The homestead property whereon I now reside comprising the three story house and about two acres of land lying between the railroad and the brook and adjoining the graveyard including the lot occupied by Charles Garrison and all my household furniture and housekeeping articles (except the piano forte which I have heretofore given to my daughter Pauline) I give and devise to my wife Louisa for and during the term of her natural life or for so long as she may remain my widow and at her death or remarriage I give and devise the same absolutely to the children I have had or may have by my said wife or their legal representatives.
Third. I do order and direct that my executors hereinafter named shall sell the cider mill and distillery building, steam engine, machinery, kettles and distilling apparatus at such time and in such manner as shall in their opinion produce the most money and shall use sufficient of the proceeds of said sale to alter and convert into a dwelling house, the large building standing next to the cider mill and known as the carpenter shop, according to the plans which I have caused to be made for said purpose and which will be found among my papers and the surplus of the proceeds of said sale, if any, shall be invested by my executors and form a part of the residue of my estate hereinafter mentioned and disposed of and I do further order and direct that the said building altered and converted into a dwelling house as aforesaid together with a suitable quantity of land therewith as a house lot for said house, shall be kept rented until a favorable opportunity, in the opinion of my executors, shall arrive for the sale thereof and then it is my will that the same shall be sold and the proceeds of said sale together with the net amount of rents derived therefrom shall be invested and form a part of the residue of my estate hereinafter mentioned and disposed of.
In making any lease or sale of the house and lot in this clause of my will mentioned my executors will take care to provide for always keeping open a sufficient, convenient and suitable right of way from the public road in front thereof to my homestead premises above mentioned.
Fourth. It is my will that the premises owned by me and occupied by William Tuttle, also the house and lot occupied by Henry W. Harman. Also the property I purchased from the estate of Henry P. Green shall be kept rented until a favorable opportunity in the opinion of my executors shall arrive for the sale of the same or of any one or more of said pieces of property and then it is my will that the same or any one or more of said pieces of property of which sale can be made shall be sold and the proceeds of said sale together with the net amount of rents derived therefrom shall be invested and form a part of the residue of my estate hereinafter mentioned.
Fifth. I do order and direct that the stock of whisky or other liquors I may have on hand at the time of my death, also my horses, wagons, harness, deigns, tools, farming implements and other goods and chattels not otherwise herein disposed of shall be sold in such manner, upon such terms and at such times as shall be most advantageous to my estate and the proceeds thereof shall be invested and form a part of the residue of my estate.
Sixth. I do order and direct that the tract of land containing twenty-one acres on the Green Village road opposite the Gibbons wash house shall be held for six years at least after my decease by my executors who shall use or rent the same to the best advantage until a favorable opportunity in their opinion shall arrive, after the expiration of said six years for the sale thereof and then it is my will that the same shall be sold and proceeds of such sale together with the net income which shall have accrued from said premises shall be added to the residue of my estate.
Seventh. All the rest and residue of my estate shall be divided into five equal shares for the benefit of my wife Louisa, my three children, Frederick, Pauline and Lilly and my granddaughter Catharine Laubacher and I do order and direct that each of said shares shall be well and safely invested upon bond and mortgage of unincumbered real estate and that the interest arising upon one of said shares shall be paid to my said wife Louisa semiannually during the term of her natural life or for so long as she may remain my widow and upon her death or remarriage, then to the children which have been or may be born to me by her share and share alike for and during the term of their natural lives and upon the death of all of said children the principal of said share shall be divided among the legal representatives of the children which have been or may be born to me by her.
II. The interest arising upon another of said original shares shall be put out at interest and all the interest arising upon said share and the interest upon said interest shall be retained in the hands of my executors during the minority of my granddaughter Catharine Laubacher and shall be paid to her in person when she shall arrive at the age of twenty-one years and thereafter the interest which shall arise upon her original share shall be paid to her semiannually in person for and during the term of her natural life and at her death the principal of her said share shall go to her heir or heirs at law but in no event shall her said share or any part thereof go to the father of said Catharine Laubacher.
III. The interest arising upon another of saidoriginal shares shall be paid semiannually to the guardian of my son Frederick until he shall attain the age of twenty-one years and then to him in person for and during the term of his natural life and at his death the principal of his said share shall go to his heir or heirs at law absolutely.
IV. The interest arising upon another of said original shares shall be paid semiannually to the guardian of my daughter Pauline until she shall attain the age of twenty-one years and then to her in person for and during her natural life and at her death the principal of her said share shall go to her heir or heirs at law absolutely.
V. The interest arising upon the other of said shares of the residue of my estate shall be paid semiannually to the guardian of my daughter Lilly until she attains the age of twenty-one years and then to her in person for and during the term of her natural life and at her death the principal of her said share shall go to her heir or heirs at law absolutely.
Eighth. The devises and bequests in this will and testament in favor of my wife are to be in lieu of all her right of dower or other rights whatsoever either at common law or by statute in and to any of my estate. And I do hereby appoint my said wife to be the guardian of our children Frederick, Pauline and Lilly.
Ninth. I do hereby nominate, constitute and appoint my friends J. Preston Allbright of Madison, New Jersey, and John H. Hornett of New York to be the executors of this my last will and testament.
In witness whereof, I, the said Frederick Springer, have hereto set my hand and seal on this thirteenth day of April in the year of our Lord one thousand eight hundred and seventy-five. [Signed] Fr. Springer. [L. S.]
Testator left him surviving his wife Marie, three children, Frederick, Pauline and Lilly, and a granddaughter, Catherine, the child of his first wife. His widow Marie died intestate in 1907 and his daughter Pauline, who had married Edward Van Voorhis, died intestate in 1917 leaving her surviving three children Fred, Harold and Preston.
Charles A. Rathbun, of Morristown, for complainant. C. Franklin Wilson, of Morristown, for defendant Lilly Cook. Howard F. Barrett, of Madison, for defendants Fred Van Voorhis and others.
STEVENS, V. C. [1] Testator gives the homestead to his wife for life and at her death "to the children I have had or may have by my said wife or their legal representatives." The remainders vested in the children at testator's death (Guild v. Newark, 87 N. J. Eq. 38, 99 Atl. 120), and as her son Frederick was then living a one-third interest vested in him. When he subsequently died intestate this interest descended upon his heirs at law.
Testator directs that the residue of his estate be divided into five shares, and that the interest of one of said shares be paid to his wife during her life, and at her death to her children during their lives, and "upon the death of all of said children the principal of said share shall be divided among the legal representatives of the children which have been or may be born to me by her." The testator's grandchild, Catherine, the daughter of his first wife, is expressly excluded from participation in this share. Who the legal representatives of the children may be at the death of the survivors can only be determined when the survivor dies. Smith v. Robinson, 83 N. J. Eq. 384, 389, 90 Atl. 1063.
Frederick's share is given in the following terms:
"The interest arising upon another of said original shares shall be paid semiannually to the guardian of my son Frederick until he shall attain the age of twenty-one years and then to him in person for and during the term of his natural life and at his death the principal of his said share shall go to his heir or heirs at law absolutely."
Frederick survived testator four months and died intestate. At the time of his death testator's estate consisted partly of realty and partly of personalty. The question is, Who are his heirs? If any of testator's estate was at Frederick's death realty and realty not notionally converted, his heirs at law were his two sisters. Comp. St. 1910, "Descent," p. 1918. As far as the estate was personalty, or realty notionally converted into personalty, it went to his next of kin, in the sense of distributees under the statute of distributions. Meeker v. Forbes, 84 N. J. Eq. 272, 93 Atl. 887; Id., 86 N. J. Eq. 255, 98 Atl. 1086. The mother and half sister, represented by her daughter Catherine take equally with his other sisters under this statute. Dickinson's Probate Court Practice, 165 Gen. St. p. 2390. See Smith v. McDonald, 71 N. J. Eq. 261, 65 Atl. 840. And the only question is, What portion, if any, of the real estate is to be considered as having been at Frederick's death, notionally converted ?
I think the testator intended a conversion out and out of all his real estate except his homestead. It is his will that the property he particularly specifies "shall be sold" and that the proceeds "shall be invested" and form part of the residue. As to the residue he divides it into five shares and "orders and directs that each of said shares shall be well and safely invested upon bond and mortgage of unincumbered real estate" —a direction which, if it is to be complied with, necessitates a conversion of all the real estate included in the residue. Lindley v. O'Reilly, 50 N. J. Law, 646, 15 Atl. 379, 1 L. R. A. 79, 7 Am. St. Rep. 802; Wright v. Keasbey, 87 N. J. Eq. 52, 100 Atl. 172. He directs that the interest arising upon each of the shares shall be paid to the wife and children respectively, and that the principal of the several shares shall go, in the case of the wife's share, to the legal representatives of her children and in the case of the other shares to the heir or heirs at law of the children respectively. The direction to sell is throughout mandatory.
It is true that the sale is not to takeplace until the occurrence of "a favorable opportunity in the opinion of his executors," but this is no more than what is generally implied, for unless directed to sell within a specified time executors do not ordinarily sell until the "favorable opportunity" arises. In Lewin on Trusts (*947) it is said:
"A direction to trustees to sell 'as soon as they shall see necessary for the benefit of the cestui que trust or whenever it shall appear to their satisfaction that such sale will be for the benefit of the cestui que trust,' amounts to an imperative direction to convert," and the property is under such circumstances considered as converted from the death of the testator. In re Raw, 26 Ch. Div. 601; Cook's Executors v. Cook's Administrators, 20 N. J. Eq. 375.
I had occasion to consider one phase of this question in Martin v. Kimball, 86 N. J. Eq. 10, 96 Atl. 565; Id., 86 N. J. Eq. 432, 99 Atl. 1070, but the question itself was different. It was whether testator intended the life tenants to have rent or an apportionment of the proceeds of sale. I came to the conclusion that he intended them to have only rents. I said, however, in the course of the opinion, that:
"It may be safely asserted that notional conversion will not be referred to a time anterior to the time when conversion is directed. If, in my will, I direct that my property shall not be sold until ten years after my death, it cannot be deemed converted as of the time of my death."
The reason is obvious. The testator intended it to retain its character of real estate for that length of time. In the ease of the Green Village tract, mentioned in paragraph 6 of the will now under consideration, the testator directs that it should be held for six years at least. This was done. It was, so counsel states in his brief, subsequently sold. Its proceeds are now actually personalty. But at the time of Frederick's death it was real estate, actually and notionally. It therefore descended as such upon Frederick's heirs at law. The fact that it has since been changed into personalty cannot alter the right once vested. Meeker v. Forbes, 84 N. J. Eq. 272, 93 Atl. 887.
Pauline Van Voorhis died intestate in 1917. The will gives the fifth share in which she had a life right to her heirs at law; but these, so called, in a gift of personalty, mean next of kin, not next of kin in the technical sense of nearest kinsman, but next of kin in the sense of distributees under the statute of distributions. Meeker v. Forbes, supra. Who answer this description cannot be known until the death of the person whose next of kin they are. Williams on Executors, *1008. As they are the statutory next of kin, they must be ascertained by reference to the statute then in force, for no other persons then answer that description. Van Tilburgh v. Hollinshead, 14 N. J. Eq. 32. Consequently Pauline's next of kin must be ascertained by reference to the act of 1914 (P. L. 1914, p. 69).