Opinion
04-30-1900
KERRIGAN et al. v. CONELLY et al.
James M. Minturn, for exceptants. Joseph Anderson, opposed.
Bill by Francis Paul Kerrigan and others against B'rances Conelly and others for the distribution of the estate of Catharine Kerrigan, deceased. On exceptions to a master's report. Exceptions sustained.
James M. Minturn, for exceptants. Joseph Anderson, opposed.
EMERY, V. C.Lands which were a portion of the real estate owned by one Catharine Kerrigan, a married woman, were by her devised for life to her husband and their three children as tenants in common, with remainders over to their respective heirs; the life estates being also made subject to certain legacies to be paid out of the rents and profits. After the death of the husband and one other of the devisees for life, the lands were sold on proceedings for partition, to which the legatees were parties and the proceeds of sale have been paid into court. Letters of administration cum testamento annexo were taken out by the husband, who was not named as executor. The personal estate and the other real estate was, by the will, devised and bequeathed to persons other than the husband, who, under the will, received no interest or benefit other than the one-fourth interest for life in this portion of the real estate subject to charges. The testatrix died in 1884, and the husband, from the time of his appointment until the time of his own death, in 1894, received the entire rents and profits of the premises in question, and it is admitted that during this time these were sufficient in amount to pay the legacies. None of the legacies have been paid, and the master to whom it was referred to report upon the interest of the parties and the distribution of the proceeds has reportedthat the legacies are not now chargeable on the lands or proceeds, for the reason that, the administrator cum testamento annexo having received sufficient to pay them, the land or its proceeds have already once paid the legacies to the administrator cum testamento annexo, and cannot be required to pay them again. If the rents were in fact received by the husband as administrator cum testamento annexo, and he was chargeable with them as received in that capacity, the decision in Sims v. Sims, 10 N. J. Eq. 158, 101, and the other cases referred to in the master's report, would seem to justify his conclusion. But the vital question in the case is, did the husband receive the rents and appropriate them as tenant by the curtesy or as an administrator? The difficulty, in my mind, is to see how it is to be held that the husband, who, as tenant by the curtesy, was entitled for life to the entire rents of this property (and the other real estate of his wife), free from charges for legacies, is, under any proof in this case, or under the circumstances of the case, to be considered as having waived his greater rights as tenant by the curtesy, or to have elected to receive the lesser estate in part of the lands in lieu of his curtesy in the entire land. The will of Catharine Kerrigan had of itself no effect on the estate by the curtesy of her husband, Peter Kerrigan. The statute relating to wills of married women 2 Gen. St. p. 2014. par. 9) provides that it should not authorize any married woman to dispose by will of any interest or estate in real property to which her husband would be, at her death, entitled by law; and as to the continuance of the husband's estate after his wife's death the statute further provides, "But such interest or estate shall remain and vest in the husband in the same manner as if such will had not been made." The devise, therefore, by Catharine Kerrigan to her husband and their three children as tenants in common of a life interest in a portion of her real estate, subject to charges, had, so far as the husband was concerned, no effect or operation of itself to deprive him of his legal estate as sole tenant for life in all the real estate of which testatrix died seised, or of his right to receive the entire rents and profits for his life as tenant by the curtesy, free from any charges made by the will.
The tenant by the curtesy in this case cannot be considered to have been deprived of his right to the rents and profits, free from any charges upon the same by testatrix, except by the establishment of two propositions: First, that as against a tenant by the curtesy the doctrine of election applies, and he may be required to elect between the estate devolved on him by law and the estate given to him by the will; and, secondly, in view of the death of the tenant by the curtesy, after receiving the entire profits of the premises now in question, it must be further established by satisfactory evidence that he did in fact elect to take under the will, and not as tenant by the curtesy. I doubt very much whether, under the present devise, the tenant would have been required to elect, for by the will he received nothing whatever, either in the real or the personal estate, except a one-fourth interest for life in a portion of the real estate. This one-fourth interest was, moreover, subject to charges for legacies, and the husband therefore received no benefit whatever by this will in compensation for the losses he would have sustained by a surrender of his curtesy. The doctrine of election is applicable, generally speaking, only where the devisee or legatee takes under the will some benefit or interest in testator's property which, except for the will, he could not have; and I doubt whether the principles relating to elections are applicable to a case where the devisee or legatee receives no interest or benefit under the will other than a portion of the interest which he would receive without the will. The question generally, in such cases, it seems to me, must rather be, has the larger legal estate which the law devolved upon the devisee or legatee been conveyed or released by the usual and ordinary methods of conveyance or release? Nothing short of such acts would, at law, devest the larger estate; and, in the absence of such dealings with the estate and the parties claiming under the will as to create an estoppel in their favor against the assertion of his legal rights, I see no basis for declaring the husband equitably devested of his statutory estate. But, admitting that the husband might have been required to elect between his curtesy and the estate given by the will, it is indispensable that facts clearly showing an election to take the lesser interest and waive the larger must be shown. I am of opinion that it has not been shown that the husband did so elect in this case. The burden of showing this is upon the parties asserting the election. Worthington v. Wigonton, 20 Beav. 67, .74. The receipt of the entire rents, and their appropriation to his own use, without paying the legacies, was prima facie an assertion that he did not accept the devise. The only circumstance relied on or proved to show election by the husband to take the devise is his proof of the will on the failure of the executors named to prove it, and his acceptance of letters testamentary cum testamento annexo. But the will was operative as to the personal property of testatrix, which was given to persons other than the husband, and administration by some person was, therefore, necessary; and the husband's mere acceptance of the letters, with the trusts imposed on the administration, is not of itself sufficient to constitute a waiver of his estate by the curtesy, and was not itself an election to take this estate under the will. No benefit came to the husband by the acceptanceof the estate under the will, but rather a loss, and therefore intention to elect between the estate given by the will and the curtesy is not to be inferred from this act alone.
The case cited by the complainant's counsel— Schenck v. Schenck (Green, Ch.; 1863) 16 N. J. Eq. 174, 182—as to the effect of proving a will as conclusive evidence of the acceptance of a trust does not apply. That was a case where the testator was himself a trustee at the time of his death, and by the law the office of trustee devolved upon his executor. It was held, therefore, that, having become executor in fact, he could not deny that he had succeeded to the trust which the law imposed on him by force of his being executor. In the present case neither the original executors nor the administrator c. t. a. other than the husband could, merely by proving the will, assert against the husband's consent the right to any rents and profits during his life for the purpose of paying the legacies; and, in order to establish such right against the husband, they would require in addition to their proof of the will some conveyance or waiver of his rights; and such waiver, conveyance, or election to take only the partial interest under the will was, in my judgment, equally necessary in order to destroy the husband's curtesy, even if he became administrator. It is not a case where the husband was wrongfully in possession of the rents at the time of proving the will, and where his subsequent receipts must, in equity, be considered as in performance of an obligation to dispose of them under the will. But it is a case where he was rightfully and legally entitled to receive the whole rents without abatement or charge for legacies, and as against the executors or any other administrator than himself the husband would clearly have been entitled to the entire rents and profits as tenant by the curtesy. He should not, therefore, as it seems to me, by the mere proof of the will, and in the absence of any subsequent acts releasing his rights, be chargeable, in favor of himself as administrator c. t. a., with trusts from which he would have been freed had any other person administered.
In Tyler v. Wheeler, 160 Mass. 206, 35 N. E. 666, it was held that, where a husband received no benefit from the will, the acceptance of the appointment of executor of a will was not, under the circumstances of that case, a waiver of his curtesy, or an election. Upon the proofs in the cause taken before the master I find that there is no evidence to warrant the conclusion that the husband in fact waived his estate by the curtesy in the premises in question, or elected to take the estate given by the will in lieu thereof; and that his receipt of the rents and profits during his life must, therefore, be considered as taken under his right to the curtesy, and cannot be applied in discharge of the legacies charged by the will upon the rents and profits. These legacies, so far as charged on the lands in rent, are charged, therefore, as subject to the life estate of Peter Kerrigan.
2. The following legacies are, by the will made chargeable upon the entire rents and profits of the estate, and not merely the rents and profits of the life estate, and must be paid: (1) The legacies of $500 each to the grandchildren William J. Kennedy and Catharine Kennedy. (2) The legacies of $50, being $25 to the St. Joseph's Church of Hoboken and $25 to St. Michael's Monastery of West Hoboken. The following legacies are, under the will, chargeable only on the income of the one-half of the estate, which belongs to the two surviving tenants for life, viz.: St. Michael's Monastery, $50; Most Holy Redeemer Church, $50; Church of St. Mary's, Hoboken, $25; Church of St. Joseph's, Hoboken, $25; Woodstock College, Md., $50; Sisters of the Poor, Hoboken, $50; Poor Master of Hoboken, $50; St. Joseph's Church, Jersey City, $50. The lands upon whose rents these legacies are chargeable until paid having been sold, I will hear counsel as to whether the payments and proceeds should not be made at once as to those legacies not chargeable merely on the estates for life.
3. The bequest to Woodstock College in Howard county, Md., should be paid to the defendant the Woodstock College of Baltimore County. The college is located in Baltimore county, instead of Howard county, but there is no other Woodstock College in Maryland, and the testatrix intended this college as the beneficiary. In the absence of evidence showing that masses are not said at the college, the legacy must go to the college for that purpose. In Moore's Ex'r v. Moore (Van Fleet, V. C.; 1892) 50 N. J. Eq. 554, 565, 25 Atl. 403, a bequest to the German Theological School at Bloomfield, N. J., was held a good bequest to the German Theological School of Newark, N. J., which had a school at Bloomfield. The legacy given to the Sisters of St. Joseph's Church must fail, because, as I understand the evidence, there is no body corporate in existence to take the. legacy. The testatrix intended, I think, to give the legacy to a corporate body, of which the Sisters of St. Francis of St. Joseph, Hoboken, were a part or members; but, as there is no such society incorporated, there is no legatee to take. It was not intended to give the legacy to the persons who, at the time of the testatrix's death, happened to be the sisters at the church. Not being a bequest for charity, it cannot be directed by the court for that purpose. The legacy to the Sisters of Charity of Hoboken was intended for the Sisters of Charity of St. Elizabeth's, an incorporated body, which is entitled to that legacy; and the legacy to the Sisters of the Poor of Hoboken was intended for the Congregation of the Sisters of the Poor of St. Francis, a body incorporated by that name. The exceptions to the master's report are sustained, and upon the settlement of the decree I will hear counsel as to any other questions relating tothe payment of the legacies, Including any question which may be raised as to the accounting for the rents since the death of Peter Kerrigan.