Board of Chosen Freeholders v. Henry

New Jersey Court of Chancery

Board of Chosen Freeholders v. Henry

41 N.J. Eq. 388

DecidedMay 15, 1886

StatusPublished

This text of 41 N.J. Eq. 388 (Board of Chosen Freeholders v. Henry) is published on Counsel Stack Legal Research, covering New Jersey Court of Chancery primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Board of Chosen Freeholders v. Henry, 41 N.J. Eq. 388 (N.J. Ct. App. 1886).

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Opinion

The Chancellor.

The complainants are judgment creditors of Catharine Henry, who is a lunatic. They recovered in the supreme court a judgment against her, which is unpaid. Execution issued thereon has been returned unsatisfied. The object of the suit is to reach her interest in property given to her by the will of her father. The judgment was recovered for expenditures for her support made before her father’s death.

By the will the testator gave to her and her brother Wesley [389]*389the residue of his estate, in equal shares, as to her share providing as follows:

“ As my daughter Catharine is not capable of taking charge of her share of my estate hereinbefore bequeathed to her, I give and bequeath whatever sum ■may be found to be her equal share of my estate, as set forth in the preceding item, to my executors in trust for the use and comfortable maintenance and ■support of my said daughter Catharine; and at her decease I do bequeath whatever part of my daughter Catharine’s share may remain unexpended to my ■son, Wesley G-. Henry, if he should survive; but if he shall not survive, then ■to the surviving children of my son, Wesley G-. Henry, share and share alike.”

The bill is exhibited against Catharine and the executors. Thfe latter have demurred. The bill cannot be sustained. It is urged by the complainants that the gift of the share of the residue is to Catharine herself, and that the subsequent provision in reference to it is merely a protection cast around her in disposing •of it in view of her mental incapacity. But the gift of the share to Catharine is expressly subject to the subsequent gift in trust. 'The residue is given to her and Wesley, “with the directions as to Catharine’s share set forth in the next item,’’ which creates the trust. The trust is an active one. The share amounts to .about $4,000. The cases which hold that such a fund or the interest thereof cannot be reached to satisfy a judgment against the cestui que trust are numerous. See, especially, Lippincott v. Evens, 8 Stew. Eq. 553, and Halstead v. Westervelt, 14 Stew. Eq. 100.

The demurrer will be allowed.

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The Chancellor.

The complainants are judgment creditors of Catharine Henry, who is a lunatic. They recovered in the supreme court a judgment against her, which is unpaid. Execution issued thereon has been returned unsatisfied. The object of the suit is to reach her interest in property given to her by the will of her father. The judgment was recovered for expenditures for her support made before her father’s death.

By the will the testator gave to her and her brother Wesley [389]*389the residue of his estate, in equal shares, as to her share providing as follows:

“ As my daughter Catharine is not capable of taking charge of her share of my estate hereinbefore bequeathed to her, I give and bequeath whatever sum ■may be found to be her equal share of my estate, as set forth in the preceding item, to my executors in trust for the use and comfortable maintenance and ■support of my said daughter Catharine; and at her decease I do bequeath whatever part of my daughter Catharine’s share may remain unexpended to my ■son, Wesley G-. Henry, if he should survive; but if he shall not survive, then ■to the surviving children of my son, Wesley G-. Henry, share and share alike.”

The bill is exhibited against Catharine and the executors. Thfe latter have demurred. The bill cannot be sustained. It is urged by the complainants that the gift of the share of the residue is to Catharine herself, and that the subsequent provision in reference to it is merely a protection cast around her in disposing •of it in view of her mental incapacity. But the gift of the share to Catharine is expressly subject to the subsequent gift in trust. 'The residue is given to her and Wesley, “with the directions as to Catharine’s share set forth in the next item,’’ which creates the trust. The trust is an active one. The share amounts to .about $4,000. The cases which hold that such a fund or the interest thereof cannot be reached to satisfy a judgment against the cestui que trust are numerous. See, especially, Lippincott v. Evens, 8 Stew. Eq. 553, and Halstead v. Westervelt, 14 Stew. Eq. 100.

The demurrer will be allowed.

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Bluebook (online)

41 N.J. Eq. 388, Counsel Stack Legal Research, https://law.counselstack.com/opinion/board-of-chosen-freeholders-v-henry-njch-1886.