Brengel v. O'Toole

• Decision Date: 18 January 1928
• Citation: 140 A. 28,102 N.J.Eq. 178
• Court: New Jersey Court of Chancery
• Parties: BERTHA BRENGEL et al., complainants, v. ARTHUR O'TOOLE, executor, &c., defendant

140 A. 28

BRENGEL et al.

v. O'TOOLE.

Court of Chancery of New Jersey.

Jan. 18, 1928.

(Syllabus by the Court.)

Suit by Bertha Brengel and others against Arthur O'Toole, executor of Amelia Tierney, deceased, for an accounting, an injunction, and other relief, in which the executor asked the court to construe the deceased's will. Will construed.

See, also, 139 A. 428.

Melosh, Morten & Melosh, of Jersey City, for complainants.

Perkins & Drewen, of Jersey City, for defendant O'Toole.

Paul J. Duffy, for defendants Tullio et al.

FIELDER, Vice Chancellor. Amelia Tierney died February 1, 1927, leaving a will duly admitted to probate. By the first clause she directed the payment of her funeral expenses; by the second and third clauses she bequeathed $10,000 to Joseph Molen and $1-000 to Billy Blair; by the fourth clause she provided as follows:

"I direct that my real property located at 143 Manhattan avenue, Jersey City, N. J., be sold by my executors and the proceeds of such sale be distributed share and share alike to Mrs. Brengel, Lottie Linders, Fred Linders, Irma Linders and Robert Linders, the above bequests to Joseph Molen and Billy Blair however, to be paid before such distribution."

By the fifth clause she directed that all the rest, residue, and remainder of her estate be distributed share and share alike among the same persons named in the fourth clause, and by the sixth (and last) clause she appointed Arthur O'Toole sole executor.

The persons named in the fourth clause filed their bill herein against the executor, alleging that he has taken management and control of the Manhattan avenue property since the death of Amelia Tierney and has collected the rent therefrom, all without authority under the will; that they have the sole right to such control and rents; that being entitled to the proceeds of sale of said property, they have the right to elect and do elect to take the lands instead of the proceeds of sale thereof; that if the personal estate of the testatrix is insufficient to pay her debts, legacies, and charges against the estate, they stand ready and willing to advance the money necessary therefor and to pay the same or to secure the payment thereof. They pray that the executor account to them for rent collected and that he be enjoined from interfering with complainant's control of the property and the collection of rent therefrom; that he be directed to apprise this court of the cash or security required for the payment of debts, legacies and administration expenses and that upon payment, or security for payment, by them the executor be directed to exhaust his power of sale by a conveyance of said lands to complainants. The executor answered the bill denying complainants' right to control and management of, or rents from, said property, and he filed a counterclaim alleging that two strangers to the suit, namely, Clara Tullio and Ida Soper, are heirs at law of the testatrix and as such may have an interest in said real property, and that questions have arisen on the construction of the will as to which he desires the advice and direction of this court. The complainants answered the counterclaim, denying any interest in Clara Tullio and Ida Soper, and also denying that construction of the will is required. Clara Tullio and Ida Soper answered the counterclaim alleging that since the will does not vest title to the Manhattan avenue property in any one, the testatrix died intestate as to such property; that they are heirs at law of the testatrix; and that upon the death of the testatrix, title to said property vested in them immediately, as tenants in common with other heirs at law. The issues were submitted on the pleadings and on a stipulation admitting that two of the complainants are minors, appearing by their guardians appointed by the surrogate of Hudson county, and that Clara Tullio and Ida Soper are heirs at law of the testatrix.

It is settled in this state that when a testator directs his executor to sell land and to pay the proceeds to beneficiaries and the executor has no other duty to perform with respect to said land or the proceeds of sale, the beneficiaries have the right to elect to take the land instead of the proceeds and that this court will not permit the executor to sell against the wishes of the beneficiaries. But all the beneficiaries of the proceeds of sale must Join in such election; otherwise the executor will not be enjoined from exercising his power of sale as directed by the will. Fluke v. Fluke, 16 N. J. Eq. 478; Bolton v. Stretch, 30 N. J. Eq. 536; Morse v. Haekensack Savings Bank, 47 N. J. Eq. 279, 20 A. 961, 12 L. R. A. 62; Hatt v. Rich, 59 N. J. Eq. 492, 45 A. 969; Cronan v. Coll, 69 N. J. Eq. 691, 60 A. 1092; Condict v. Condict, 73 N. J. Eq. 301, 75 A. 815; Cranstoun v. Westendorf, 91 N. J. Eq. 34, 108 A. 776. The complainants are not the only persons interested in the proceeds of sale of the Manhattan avenue property. The direction...