Turner v. Gibb

• Citation: 22 A. 580,48 N.J.E. 526
• Parties: TURNER v. GIBB et al.
• Decision Date: 29 July 1891
• Court: New Jersey Court of Chancery

22 A. 580

48 N.J.E. 526

TURNER

v. GIBB et al.

Court of Chancery of New Jersey.

July 29, 1891.

(Syllabus by the Court.)

On bill and answer.

Joseph Thompson, for complainant. A. Stephany, for defendant Alexander Gibb.

GREEN, V. C. Jeanette Carr, late of Atlantic City, in this state, died in February, 1887, leaving a last will and testament dated November 13, A. D. 1882, substantially as follows: "Item first. I order and direct that all my just debts and funeral expenses be fully paid and satisfied, as soon as conveniently may be after my decease, out of the personal property and real estate mentioned in the second item of this, my will. Item second. I give, devise, and bequeath unto my son Robert B. Gibb my house and lot on the south-west corner of Race and Utah streets, being No. 714 Race street, in the city of Philadelphia and state of Pennsylvania, together with all the furniture, fixtures, and stock of liquors therein, to him and his heirs forever, subject and charged, however, with the payment of my just debts and funeral expenses." Item third is a devise to her granddaughter, Hannah Carr Gibb, daughter of her son Alexander Gibb, of two tracts of land situate in Egg Harbor township, Atlantic county, in this state, describing them, so that they can be readily identified. The fourth and fifth items contain general pecuniary legacies to her grandchildren by name, amounting in the aggregate to $2,020. Item sixth is as follows: "I give, devise, and bequeath unto my son Alexander Gibb all the rest and residue of my estate, real, personal, and mixed, whatsoever and wheresoever situated, during the term of his natural life; and after his death I give, devise, and bequeath the same to my granddaughter, Hannah Carr Gibb, daughter of my son Alexander Gibb, to her and her heirs and assigns, forever." The will was admitted to probate March 14, 1887, by the surrogate of the county of Atlantic, in this state, and letters testamentary were issued thereon to Richard H. Turner and Harry L. Slape, the executors named therein, who took upon themselves the execution of the said will. Harry L. Slape, one of the executors, died in May, 1887, leaving the complainant in this suit the surviving executor. The personal estate, as it appears by the inventory filed by the executors, amounts to the sum of $1,057.47. The testatrix, in addition to the real estate devised by the second and third clauses of her will, died seised of four other tracts of land and real estate in Atlantic county, which are described in the bill, and which were not in any wise devised by the testatrix except by the sixth item of her will. These tracts were conveyed to testatrix as follows: (11 By Hannah Beebe and husband, October 26, 1881; (2) by George Lewis and wife, October 18, 1882; (3) by James W. Moore and wife, January 25, 1884; and (4) by Ezra Johnson and wife, January 17, 1885, as appears by the admission of counsel on file. This bill is filed by the surviving executor, seeking to charge the payment of the general pecuniary legacies given to the grandchildren upon the real estate devised by the residuary clause, in consequence of the deficiency of personal estate to meet the same.

This will was made in 1882, and the testatrix died in 1887. The parties have not availed themselves of the privilege of showing by parol evidence the nature, situation, and amounts of testatrix' property at the time of making the will, as they were entitled to do, (Leigh v. Savidge, 14 N. J. Eq. 124; Johnson v. Poulson, 32 N. J. Eq. 390;) but both sides have contented themselves with the result as fixed by the inventory filed by the executors. The complainant claims that the payment of these legacies is charged upon the real estate not devised other than by the sixth item, by invoking the rule stated in Hawkins on Wills, page 294: "If legacies are given generally, and the residue of the real and personal estate is afterwards given in one mass, legacies are a charge on the residuary real as well as the personal estate." Any question as to the rule which may have existed in this state must be considered as set at rest by the decision of the court of appeals in the case of Corwine v. Corwine, 24 N. J. Eq. 579, as explained in Johnson v. Poulson, 32 N. J. Eq. 390, the result of which maybe thus stated: That when pecuniary legacies are first given, and afterwards the residue of the estate, real and personal, if the personal estate is insufficient therefor, the intention of the testatrix to have the legacies payable out of the real estate appears by necessary implication from the words "residue" or "remainder, "when applied to the two kinds of property combined, unless there are other words or provisions in the will which are inconsistent with the existence of such intention on the part of the testatrix. In other words, that such inference arises from the use of these words under such circumstances, and will be given that effect, unless such construction is restrained or avoided by other words or provisions in the will. Stevens v. Flower, 46 N. J. Eq. 340, 19 Atl. Rep. 777; Merritt v. Merritt, (N. J.) 21 Atl. Rep. 128. This is practically the English rule, as stated in Hawkins, supra, and declared in the case of Greville v. Browne, 7 H. L. Cas. 689. Most of the English authorities were cited in the case of Corwine v. Corwine, supra. The principle has also been enforced in Gyett v. Williams, 2 Johns. & H. 429; Carroll v. Hargrave, 5 Ir. R. Eq. 123; Gainsford v. Dunn, L. R. 17 Eq. 405; Brooke v. Rooke, 3 Ch. Div. 630; In re Bellis' Trusts, 5 Ch. Div. 504; Bray v. Stevens, 12 Ch. Div. 162; Elliott v. Dearsley, 16 Ch. Div. 322; Hays v. Jackson, 6 Mass. 149; Wilcox v. Wilcox, 13 Allen, 252; Gallagher's Appeal, 48 Pa. St. 122; Robinson v. McIver, 63 N. C.649. The rule obtains whether interests in lands have already been given by the will or not. Bench v. Biles, 4 Madd. 187; Francis v. Clemow, Kay. 435; Wheeler v. Howell, 3 Kay & J. 198; Miller v. Sandford, 31 N. J. Eq. 427; Lewis v. Darling, 16 How. 1; Hassanclever v. Tucker, 2 Bin. 525; Moore v. Beck with, 14 Ohio St. 135. The courts of New York do not follow the English decisions and infer an intent to...