Opinion
05-16-1893
CRANE et al. v. BOLLES et al.
John H. Meeker, for complainants. John W. Taylor, for Henry C. Howell. Frederick T. Johnson, for Ezra B. Bolles and others. George M. Robeson, for John Hone and others.
(Syllabus by the Court.)
Suit by Augustus Crane and Thomas N. Bolles, executors of Nathan Bolles, deceased, against Ezra B. Bolles and others for a construction of deceased's will.
John H. Meeker, for complainants.
John W. Taylor, for Henry C. Howell.
Frederick T. Johnson, for Ezra B. Bolles and others.
George M. Robeson, for John Hone and others.
MCGILL, Ch. The complainants seek a construction of the will of Nathan Bolles, deceased, and instructions regarding their duties under it. So far as their present necessities require, they are entitled to the aid and direction of this court; but the court will not determine questions which have not yet actually arisen, and may never arise. Especially will it avoid the determination of such questions when it appears that other parties than those presently before the court will be concerned in their solution. Traphagen v. Levy, 45 N. J. Eq. 448, 18 Atl. Rep. 222. Nathan Bolles died testate on the 2d of February, 1871, possessed of about $100,000 worth of personal estate, and seised of three parcels of valuable real estate in the city of Newark,—one parcel, a residence, his homestead, on Park street; another residence on Washington street; and a business site on Broad street. By his will, which was dated on the 26th day of March, 1865, after revoking former wills, and directing the payment of his debts and funeral and testamentary expenses, he gave, devised, and bequeathed to his widow the use and enjoyment of his homestead, and the furniture therein, for her natural life, and continued therein in the following language: "Fourthly. I also give and bequeath to my said wife the annuity or annual sum of fifteen hundred dollars, to be paid to her quarter yearly by my executors hereinafter named out of the rents and profits of the premises known as 'Numbers 240, 242, and 244 Broad Street,' Newark, aforesaid, so long as the said premises shall remain unsold; and after the sale of said premises, as hereinafter provided, I give and bequeath to her, in lieu of said annuity, the interest and income of twenty-five thousand dollars of the proceeds of such sale, which I hereby authorize and direct my said executors to invest as securely and profitably as practicable, with power to vary the securities from time to time as they may judge expedient, and the income or interest arising therefrom to pay to my said wife quarter yearly during her natural life. Fifthly. All the residue of my personal estate I give and bequeath to my children, viz., Ezra B. Bolles, Mary E. Crane, (wife of Augustus Crane,) Henrietta A. Meeker, (wife of John H. Meeker,) Julia F. Clapp, (widow of Henry B. Clapp,) Thomas N. Bolles, Nathan J. Bolles, Emma C. Adams, (widow of William F. Adams,) and Anna A. Bolles, to be equally divided between them, share and share alike. Sixthly. I give, devise, and bequeath to my said daughter Emma C. Adams the use and enjoyment of the house and premises where she now resides, known as Number 141 Washington Street, Newark, aforesaid, for and during her widowhood, and free from all taxes and expenses for repairs necessary to be made, and for insurance. Seventhly. I hereby authorize and empower my said executors, upon the request or by the consent of the majority of my said children, to sell, either at public or private sale, and convey, upon such terms and for such price or prices as my said executors shall deem proper, all or any part of my real estate, where so ever situated, (except my said homestead, which may be sold after, but not before, the death of my said wife, and said premises No. 141 Washington street, which may be sold after, but not before, the remarriage or decease of my said daughter Emma C. Adams,) and after retaining twenty-five thousand dollars, (to be invested for the benefit of my said wife,) and the further sum of five thousand dollars, (to be invested as hereinafter mentioned,) from the proceeds of the sale of the said premises 240, 242, and 244 Broad street, aforesaid, to divide and apportion the residue of the net proceeds of sale of said real estate among my said children, as directed in the fifth item of this, my will. Eighthly. I give and bequeath to my said children, to be divided among them in equal portions, the household goods and furniture aforesaid, or the proceeds of the sale thereof, (if a sale thereof is thought best by my executors,) after the death of my said wife. Ninthly. I authorize and direct my said executors, until the sale of my real estate, to keep the same in good repair, to pay all taxes and assessments against the same, to keep the buildings thereon well insured, and to rent or lease the same, (with the exception of the said homestead and Washington street premises during the life of my said wife and the widowhood of my said daughter Emma C. Adams, respectively,) and to pay to and divide among my said children, in equal shares, the net rents and profits remaining after deducting necessary outlays and expenses for the purposes aforesaid, and the annuity of fifteen hundred dollars from the said Broad street premises; it being my wish that the expenses for taxes, assessments, repairs, and insurance, and other necessary charges upon and in respect to my said homestead and the said Washington street premises, shall be paid, so far as practicable, from the rents of said Broad street premises, until the latter premises shall be sold. Tenthly. I hereby authorize and direct my said executors, upon the sale of said Broad street premises, to retain also, from the proceeds of the sale thereof, the sum of five thousand dollars, and the same to invest as securely and profitably as practicable until the death of my said wife, and the death or remarriage of my said daughter Emma C. Adams, and from the income or interest arising therefrom to pay the taxes, assessments, insurance, repairs, and other necessary charges upon or in respect to said homestead and Washington street premises during the time for which they are hereinbefore, respectively, given to my said wife and daughter. Eleventhly. I direct my executors, upon the death of my said wife, to divide the said twenty-five thousand dollars invested for her benefit in equal portions among ray said children; and, upon the death of my said wife, to divide in like manner the said five thousand dollars directed to be invested as aforesaid, together with the accumulations of interest or income thereon, (which I wish to be added to the principal fromtime to time while so invested.) Twelfth]y. It is my will that the issue of any child who may hereafter decease shall receive the share or portion to which their parents would be entitled to if living. Lastly. I hereby appoint my son Thomas N. Bolles and my son-in-law Augustus Crane, and the survivor of them, executors and executor of this, my last will and testament. "
The testator's widow and his daughter Emma C. Adams both died in the year 1877. His daughter Anna A. Bolles married Henry C. Howell in 1867, and died in 1875, intestate, leaving three daughters her surviving,—Elizabeth, who is living and of full age, and Jennie and Anna, who both died in infancy. All the other children of the testator are yet living. Shortly after the death of the testator his personal estate, except the furniture in the homestead, was divided equally among his children. After the testator's death the widow occupied the homestead, and Mrs. Adams occupied the premises on Washington street, until they, respectively, died, and the executors took possession of the Broad street property, and leased it; and, after paying out of the income therefrom the expense of the property as contemplated by the will, and the widow's annuity, they, from time to time, divided the remainder of the income equally among the testator's children. After the death of the widow and Mrs. Adams, the executors took possession also of the homestead and the Washington street property, and rented them, and from time to time hitherto have divided the net income from them, together with the net income from the Broad street property, among the testator's children. It does not appear that a majority of the children of the testator have ever requested the executors to sell the real estate, or any part of it, or that they have ever consented to such a sale, or have ever been asked by the executors or each other to consent to such a sale. Nor does it appear that there has been any occasion when the propriety or desirability of such a request or consent has been brought in question or considered. The emergency which has produced this suit is a doubt which has arisen in the minds of the executors as to the propriety of paying to Henry C. Howell, who has become the administrator of his wife's estate the net income which would properly go to the wife if she were yet alive. Mr. Howell insists that, according to the true construction of Mr. Bolles' will, a conversion of his real estate was directed, and a distribution of that money was provided for; and that he, as administrator of his wife's estate, is entitled to the dividends which would have been due to her it she had lived; and, further, if this contention be incorrect, and the property remains real estate, that his wife was seised of an undivided interest, In which he has curtesy. The other defendants who have answered contend that the legal title to the real estate passed to the executors of the will; that Mrs. Howell did not take an interest in which her husband could have curtesy; and that at her death her interest, If any, went to her children, and now is vested in her surviving daughter.
It is observed, upon reading the will, that the testator does not expressly make permanent disposition of his real estate. He does not expressly devise the fee. His will, however, bears upon its face such evidence of thought and deliberation that, upon reading it, the mind is constrained to conclude that intestacy as to any interest in the estate was not thought of. The obvious scheme was to first securely provide for the testator's wife, and then, after securing a home for his widowed daughter, divide the remainder of his estate, reduced to money, equally among all his children. The conversion of real estate into money was to be deliberate, instead of forced and hasty The personalty was to be divided at once, but the realty, which would be liable to greater sacrifice by immediate sale, was to be put in control of the executors of the will, who, while a favorable opportunity to sell it was awaited, were to lease and care for it, and, after paying the expenses of its care and management out of the income they should receive, were to divide the residue of that income equally among the testator's children or their issues For the office of executor the testator selected a son and a son-in-law who represented one fourth of the interest of his children. He clothed the two men thus selected with the power to sell, and to fix the terms of sale, but, to secure deliberation and afford his remaining children a voice in counsel as to the sale, he left the time of the sale to the discretion of a majority of them. It is very evident that he did not intend that there should be either a failure to sell the property, or that the sale of the Broad street property, at least, should be long postponed. This is apparent in every part of the will which hears upon the disposition of the real estate. A majority of his "said children" were to request or consent to the sale. The sale, then, was to take place while they lived. His wife was to have an annuity from the rents of the Broad street property "so long as said premises shall remain unsold." This expression imports, not only the sale was to be inevitable, but that it was to take place within the life of the wife. "After the sale"—after a temporary period—the wife was to have the income of a fund to be invested for her benefit. The executors were to preserve, manage, and keep productive the Broad street property "until the sale." Here again the inevitable event,—sale,—was contemplated. "Upon the sale of the Broad street premises" the sum of $5,000 was to be retained to provide a fund for the preservation of the homestead and Washington street properties, the sale of which was to be postponed until the death of the widow and Mrs. Adams, respectively. Here again the language assumed as certain a speedy sale; that is, a sale within the life of the widow and Mrs. Adams. By the eleventh paragraph of the will provision was made for the distribution of two funds, to be made up from the proceeds of sale of the Broad street property. The will made no provision for either failure to sell or failureof the children to request or consent to a sale. No other disposition of the real estate was made, and the only apportionment contemplated was in money or chattels. Thus, it appears to me, the testator's intention is unequivocally shown that his real estate shall be converted into money. To accomplish his purpose a sale of the real estate must take place, and therefore a sale is imperative. Although, then, there be no express command to sell, such a command must be implied. That being so, it follows that the action required of the executors and children is subordinate to the requirement of sale, and must be controlled by it. When an opportune time to sell arrives, the children must consent, and the trustees must sell. The children may move the executors to action, at the proper time, by a request, or the executors, at such time, may demand from the children their consent. If there be negligent disregard of the duty thus imposed on executors and children, or an obstinate refusal upon the part of either, the assistance of this court, to compel the due execution of the trust, may be invoked. The object of the provision for request or consent is to insure notice and co-operation between the executors and the children, and to prevent unreasonable sacrifice of the property, not to admit the interposition of arbitrary will to defeat a proper sale, and not to leave it to discretion, either of the children or executors, whether there shall be a sale at all. This case is not within the decision in Kouvalinka v. Geibel, 40 N. J. Eq. 443, 3 Atl. Rep. 269, where Vice Chancellor Bird held that, where a sale depends upon the request of a third person or the discretion of a trustee, there will be no conversion until the sale actually takes place. Here the direction for sale is imperative. It does not depend on request or consent. It is only as to the precise time at which the sale is to take place that discretion is to be exercised. The situation here is well described by the following quotation from Chancellor Zabriskie in Wurts v. Page, 19 N.J. Eq. 365, 375: "But the question of conversion is a question of intention; and the real question is, did the testator intend his lands should be converted into money, at all events, before distribution? In this case it seems to me that the directions in other parts of the will show clearly that he did not so intend. * * * The spirit of this whole direction shows that conversion was intended. * * * All these directions show that he intended that his estate should be converted into money before it was distributed by his trustees; and they would be required to convert it into money before distribution, and to pay it over in that form; and the rule is well settled that if the will requires the real estate to be converted into money at all events, notwithstanding the executor may have a discretion as to time, it must be considered as converted into money from the death of the testator." Cook v. Cook, 20 N. J. Eq. 377; Theob. Wills, 195. As to the testator's children, his entire estate must be considered as personalty.
I think that the fee of the real estate went to the executors, in trust to lease and manage the property until they shall sell it as the will contemplates. The scope and necessity of their authority appear to demand that they have such estate, although it is not expressly given to them. They are imperatively required to convey a fee after a short period of time, during which they are to control the property. When their trust is executed, the fee will have gone to third persons, away from both trustees and cestuis que trustent. No estate in the land is given to the children. On the contrary, the gift of the proceeds of sale and of merely the net rents to them implies that the title in the land is withheld from them, and that their interest is in personalty only, growing out of the due execution of the trust. The case appears to me, in this aspect, to be well within the rule that where a testator directs acts to be done by the executor which belong to the owner of the freehold, and which require a complete dominion over the real estate, a devise to him in fee will be implied. 1 Lewin, Trusts, (8th Ed.) 212, 213; Zabriskie v. Railroad Co., 33 N. J. Eq. 22. on appeal, 34 N. J. Eq. 282; Lindley v. O'Reilly, 50 N. J. Law, 636, 15 Atl. Rep. 379; Traphagen v. Levy, 45 N.J. Eq. 448, 18 Atl. Rep. 222; Perry, Trusts, § 315. The children, then, have no control over the real estate. They cannot sell, convey, or incumber it, and a judgment recovered against one of them will not be a lien upon it. It follows, also, that their husbands and wives cannot have dower or curtesy in the land.
The effect of the twelfth paragraph of the will remains to be considered. It provides that the issue of any child of the testator "who may hereafter decease" shall receive the share or portion to which their parent would be entitled if living. Here is a gift over to the issue if the parent shall die. The disposition of the courts is to so construe such a gift that it will interfere as little as possible with the prior gift to the parent; consequently the contingent event, death, is not held to mean death at any time, but death before a particular period, e. g., the period of distribution. Hence it is the rule that where there is a bequest to one person, and in case of his death to another, the gift over is construed to take effect only in event of the death of the prior legatee before the period of payment or distribution, unless a contrary intention appears by the will. Hawk. Wins, 254; 2 Rop. Leg. 607; 2 Williams, Ex'rs, 1260; 3 Jarm. Wills, (Rand. & T. Ed.) 606; Burdge v. Walling, 45 N. J. Eq. 10, 12, 16 Atl. Rep. 51, where the New Jersey cases are collected. I do not perceive anything in the will before me to take the present case out of this rule. The will speaks from the death of the testator, and the paragraph considered refers to death thereafter. There is absolutely nothing to warrant contention that the death referred to is that which shall happen before the decease of the testator, and that the particular period which shall determine the contingency created is the time when the testator shall die. On the contrary, the paragraph expressly refers to the receipt of the parent's share and portion,and thereby emphatically makes the time of disposition the particular period in view. It is true there is to be a distribution of the personal estate immediately upon the testator's death, but the distribution then may not include the proceeds of a sale of the real estate. The will expressly contemplates that in all probability there will be delay in the sale of the real estate, and more than one distribution, and it makes provision for a series of payments to the children, and a series of receipts by them. It appears to be the proper exposition of the testator's intention in this paragraph to say that the gift over to the issue is to take effect as to each of the several distributions that the parent shall predecease. The issue will take by substitution fur the parent, and not a substantive or original gift, because they spring from the parent who would have taken if he or she had survived the period of distribution. Acken v. Osborn, 45 N. J. Eq. 377,17 Atl. Rep. 767, and on appeal, 46 N. J. Eq. 607, 22 Atl. Rep. 56. It is now settled in this state in the case of Acken v. Osborn, just referred to, which follows the ruling in Martin v. Holgate, L. R. 1 H. L. 176, that, in order that issue may take where the gift to them is original or substantive, they need not survive the period of distribution; but our courts have not yet passed upon the question whether issue must survive the period of distribution in order to take, where the gift is substitutional. In Crause v. Cooper, 1 Johns. & H. 207, Wood, V. C, thought that they should survive that period. But in Lanphier v. Buck, 2 Drew. & S. 496, 34 L. J. Ch. 650, Vice Chancellor Kindersley, in a well-considered opinion, reached the conclusion that, where a gift to one and his issue is an original gift to the issue, the issue need not survive their own parent, but where it is substitutional such survivorship is necessary; but that in neither case is it necessary for the issue to survive the period of distribution. In Re Merricks' Trusts, L. R. 1 Eq. 551, Vice Chancellor Wood says that his utterance in Crause v. Cooper was not necessary to the decision of that case, and that, after considering the judgment of Vice Chancellor Kindersley in Lanphier v. Buck, he was quite satisfied that it was incorrect. "The form of expression," he said, "amounts only to this: There is a certain period, the testator says, at which his property is to be divided. At that period let it be given to the parents, if they be living, that is, one class, or let it be given to all their children, that is, another class. He does not say as to the children if they be living, and I think there is reason for that distinction. * * * The reason is that the testator had not the intention of depriving the children of the property on account of their not surviving the tenant for life, although their parent would not take if he or she did not survive the tenant for life. As regards the parent, the testator feels that, if the parent lives to take the property, the children, through the parent, will have the benefit of it." The conflicting cases upon this subject are cited by Mr. Jarman in his Treatise on Wills, (2 Jarm. Wills, [Rand. & T. Ed.] 749.) who says: "And it is now settled that children are not by implication required to survive the period of distribution as expressed with regard to their parent in whose place they stand, whether the gift to the issue be original,—as where it. is to such of a class of legatees as survive the period of distribution, and the issue of such as are then dead,—or strictly substitutional, i. e., divesting a previous vested gift to the parent." In Theob. Wills, 498, it is, in substance, also said that the whole current of recent authority is to the effect that the issue will take although they do not survive the period of distribution, whether the gift to them be original or substitutional. I am of opinion that the view adopted by the authorities 1 have cited is the reasonable and proper solution of this question. I refer to this question more for future service in this trust, in case all issue, in some instance, should die before their parent, than for the purpose of determining Mr. Howell's status in this litigation. Here the gift over is to a class,—"the issue of any child,"—who are to receive the share or portion to which their parents, if alive at the distribution, would be entitled to. This provision contains no words of severance or other expression of intention which will take it out of the rule that a bequest to a class, without more, creates a joint tenancy. Hawk. Wills, 111; 2 Williams, Ex'rs, 1462; 2 Roper, Leg. 1359; Theob. Wills, 321. Elizabeth Howell survived her sisters, and is now entitled to that which shall come from her mother's portion. I think that her mother took a vested interest in Nathan Bolles' estate, subject to being defeated by her failure to survive the period of distribution, and, the contingency having happened, Elizabeth, the survivor of her issue, takes a vested interest in her stead. It is true, the gift is not direct, but comes through a demand to divide and pay at a future time, upon a given event; yet the whole will most clearly evinces the purpose of the postponed payment to be for the convenience of the estate, and brings the case within the exception to the general rule that such gifts do not vest, which has recognition and approval in Post v. Herbert's Ex'rs, 27 N. J. Eq. 540. My conclusion is that all future payments on account of the interest of Mrs. Howell, either from net income or proceeds of sale, must be to her daughter. As to the question propounded by the executors, whether it is necessary that a majority of all the testator's children must unite in a request or consent to sell the real estate, I am clearly of opinion that the majority must he of the whole number, and not merely of the surviving children at any time. The testator names his eight children, and then requires the request or consent of a majority of "said children." His language is plain and unambiguous, and it is not surprising when we consider that he did not contemplate a postponement of the sale beyond the lives of his children or a majority of them. I need not now direct the executors as to the disposition of the share of a child of the testator whomay die before distribution without having had Issue. The emergency which may require such direction has not arisen, and may never arise. By his answer, the defendant Henry C. Howell asks the interference of the court to now compel a sale of the real estate. Such action is not properly invoked by answer. Besides, Mr. Howell has no interest which entitles him to this relief, and I have no proof before me of that negligence or obstinacy or bad faith, which I conceive to be necessary to justify the desired intervention.