Application of Smith
| Citation | 118 A. 271 |
| Decision Date | 11 July 1922 |
| Docket Number | No. 46/566.,46/566. |
| Parties | Application of SMITH. |
| Court | New Jersey Court of Chancery |
Proceeding by Roy U. Smith for the sale of lands limited over under a will. On petition for payment of certain moneys, etc. Order in accordance with the opinion.
Simon M. Seley, of Newark, for petitioners.
William W. Evans, of Paterson, for respondent.
WALKER, Ch. The petition shows that Hiram J. Smith, late of the county of Passaic, departed this life April 29, and that his will was probated May 12, 1885; that in item 4 thereof he provided as follows:
"I give and bequeath to my children Sarah Prances Smith, William Henry Smith and Mary Anetta Smith, the sum of $1,000 to be paid to the said Sarah and William H. Smith as soon as conveniently can be after my decease and to Mary Anetta Smith in the following manner, that is to say: To her mother my wife Sarah Elizabeth Smith in trust for her until she arrive at the age of 21 years then the principal and accrued interest shall be paid to her."
Item 5 of the will provides inter alia that upon the death of testator's wife, which lias occurred, a fund of $5,000 be set apart in trust for his children during their lives, and upon the death of one of them a third, part thereof to be equally distributed to that child's heirs, and so on till the last child dies. The will further provides that after the death of testator's wife his remaining estate shall be held for his children upon the same trust as that set up for the $5,000. Mr. Smith and his wife left three children, namely, Mary A. S. Anderson, Sarah F. S. Henry, and William H. Smith. The petition avers that Mrs. Anderson has no children, and that she is 47 years of age; that Mrs. Henry is a widow 63 years old, with two children, David Henry, 36 years old, and married, and Helen Hanson, a married woman 26 years of age; that William H. Smith has two children, Roy U. Smith, 36 years of age, and married, and Jennie S. Wainwright, a married woman 26 years old.
In these proceedings the lands and premises belonging to the estate of Hiram J. Smith, deceased, were sold, and the net proceeds of sale, amounting to $6,756.38, have been paid into this court, where they still remain. The petition avers that no part of the legacies of $1,000 each to Mrs. Anderson and Mrs. Henry, children of the testator, have been paid, and that there are no funds or property of the estate of the testator to satisfy those legacies, except the proceeds of sale above mentioned. It is also averred that David Henry and wife and Helen Hanson and husband, David and Helen being the only children of the petitioner Sarah F. Henry, are willing to consent that the balance of the estate, after the payment of the $1,000 legacies have been made to the abovementioned daughters of Hiram J. Smith, deceased, be distributed to and among the three legatees above named, upon condition that Roy U. Smith and wife and Jennie S. Wainwright and husband enter into a stipulation consenting thereto; and the prayer is that distribution be ordered accordingly.
Presented with this application is an agreement signed by Sarah P. S. Henry, widow, Mary A. S. Anderson and husband, William H. Smith and wife, and three named parties being the only children of Hiram J. Smith, deceased; Helen Hanson and husband, the named party being the child of Sarah P. S. Henry; Roy U. Smith and wife, Jennie S. Wainwright and husband, the two named parties being the only children of William S. Smith (all being of full age) consenting to the distribution prayed for in the petition. It will be observed that this agreement is not signed by David Henry and wife; David being the son of Sarah P. S. Henry.
The first question to be solved is: Is the legacy of $1,000 a gift of that amount to each of testator's three children, or of that sum to be divided among them?
In Taylor v. Tolen, 38 N. J. Eq. 91, Chancellor Runyon, quoting the bequest on page 93, which is to the "Rochester New York Theological Seminary and to Hamilton Theological Seminary $10,000," states at page 97 that a question was raised on this bequest whether the legacy was of $10,000 to both, or of that sum to each, and observed that it was $10,000 to each and not that sum to the two; that the testator did not say, "I give to the two $10,000 but to one and (also) to the other that sum."
This is entirely apposite as a precedent and quite...
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