Crocheron v. Jaques

3 Edw. Ch. 207

• Court: New York Court of Chancery
• Decided: April 26, 1838
• Status: Published

Opinion

The Vice-Chancellor :

The will under consideration in this cause is, to my mind, an exceedingly plain one, though, in some respects, untechnically and inartificially expressed, but not to such an extent as to obscure its object and meaning.

By the first devising clause and the postscript, taken in connection as they must be, it is very clear that the testator gives to his wife Jane the whole of his personal estate of every kind and description without any exception whatever, and this is an absolute gift to her, as declared “ to the sole use of her, her heirs and assigns for ever,” which, however, are words of surplusage and not necessary to its being an absolute gift. Of course the debts and funeral expenses are first to be paid out of the personal estate and she takes it subject to the payment of the debts, &c., as is also declared in the previous part of the will.

It is equally clear that the legacy of five thousand dollars to the wife is a gift out and out of so much money to be raised out of the real estate, by a sale thereof, except the part left to the brother Reuben. Both by the first devising clause and the explanatory one, called the postscript, this is shown to be as absolute a legacy as can well be expressed, though the testator has not used the words heirs and assigns ; but he says it is to her sole use, control and disposal. There are no words of restriction, nothing to show that he intended to give her the mere use of it or that she should hold it only so long as she remained a widow or for her life merely. It is only the real estate or the rents and profits of the real estate that is given to her during life or during her widowhood. If she remained a widow all her lifetime and in the possession and enjoyment of the real estate, then she might not receive the five thousand dollars in money, as a sale, for the purpose of raising it would oblige her to give up the possession ; and in the event of her not requiring the property to be sold in her lifetime, the legacy being charged on the real estate, she is authorized to give, grant or bequeath the money in any way she may deem proper. This is giving her a power of appointment over the legacy, in the event of her not requiring the payment of it to her in her lifetime; and so far from its qualifying the gift, I think it shows more strongly the intention of the will to give her an absolute interest and right of ownership not restricted to her life or widowhood.

The next point is as to the manner of raising this legacy of five thousand dollars. The testator directs that whenever his wife may wish to have this sum paid over to her and desires the farm to be sold to realize for her the said sum, the farm maybe sold conformable to law; and, paying the amount to her, the balance of the purchase money shall be invested, &c. Here is an explicit direction fora sale of the farm conformable' to law, for the purpose of raising the money, which is a charge on the land. But who is to make the sale ? The will, in this part of it, is silent on the subject. In the previous clause appointing executors, he says they are “ to execute and perform my desires and requests herein before expressed.” What is before expressed in the will does not relate to a sale at all events for the purpose of raising money to pay this legacy ; it was only in the event of a deficiency of personal estate, as the will was at first written, that the sale of the real estate was to be resorted to, and perhaps it -might be objected that the executors’ powers are limited or restricted to that event and do not extend to the events that are afterwards declared in the postscript—at least, it is doubtful whether the executors have the power, except by implication. But there can be no doubt of its being a valid power, though the persons to execute are ■not designated. It is a power in trust, as defined [by the revised statutes, and is imperative, the performance being compellable in equity for the benefit of the parties interested : 1 R. S. 734,;seti. 94, 95, 96, and by sec. 101, where a power in trust is created by will and the testator has omitted to designate by whom the power is to be exercised, its execution devolves on the court of chancery. Under this authority, there can be no difficulty in making a decree for the sale of the farm and that Mrs. Jaques be paid her five thousand dollars out of the proceeds and the residue be divided among the residuary devisees of this part of the estate.

I am inclined to think that, under the circumstances, Mrs. Jaques is not entitled to interest on the legacy of five thousand dollars, but only to the principal sum. It seemed to be necessary to resort to this court for its aid, in selling the real estate before the legacy could be paid. She demanded a sale in April, one thousand eight hundred and thirty-five and might then have filed a bill herself for the purpose. This she did not do, but left it to the two other executors to file the bill. Whatever delay there was in this, she might have avoided. Since the bill was filed, there has been no delay, except what was inseparable from the nature of the case and the state of business in this court. She must, therefore put up with the inconvenience, if any, of being kept out of the money so long. But she is entitled to it free from any deduction on account of costs ; the defendants, who have contested her rights and pro-4 4 w * duced the controversy, will be sufficiently mulcted, if they are made to bear the whole costs of this suit out of the balance which will be coming to them, after paying her legacy. Decree accordingly.