Buhring v. National Standard Co.

• Decision Date: 22 April 1940
• Citation: 127 N.J.Eq. 243,12 A.2d 632
• Court: New Jersey Court of Chancery
• Parties: OTTO BUHRING, sole trustee, &c., complainant, v. NATIONAL STANDARD CO., defendant

12 A.2d 632

127 N.J.Eq. 243

BUHRING

v. NATIONAL STANDARD CO.

Court of Chancery of New Jersey.

April 22, 1940.

Syllabus by the Court.

Testator gave his entire estate to his wife for life and named her executrix and, "upon her death," gave his estate to executors to be thereafter appointed, in trust to sell and distribute the proceeds.The widow qualified as executrix and took possession of the estate, but subsequently was discharged as executrix and released and conveyed her life estate to an executor thereafter appointed.Held, her act terminated such life estate, and the time for sale by the substituted executor, if legally appointed, was accelerated and his power to sell became operative immediately.

Testator's will was probated at the place of his domicile in a foreign state and a copy of the probate proceedings was filed in a county in this state wherein real property of which the testator died seized is situate.Held, the orphans court of such county is without jurisdiction to discharge the executrix to whom letters testamentary were granted in the foreign state, or to appoint a substituted executor and trustee in her place.

The proper practice in this case is for the executrix to apply to the court in the foreign state for her discharge, which court, on granting her petition, appoints a substituted executor or trustee.A copy of that court's order should be filed in the proper county in this state, whereupon power of sale under testator's will may be exercised by such substituted executor or trustee over land in this state.

Bill of complaint for the specific performance of a contract for the sale of realty by Otto Buhring, as sole trustee under the will and codicil of Cord Meyer deceased, against the National Standard Company.

Bill of complaint dismissed, without prejudice.

William J. Miller, of Hoboken, for complainant.

Kellogg & Chance, of Jersey City, for defendant.

FIELDER, Vice Chancellor.

The bill herein was filed by Otto Buhring as sole trustee under the will and codicil of Cord Meyer, seeking a decree against defendantNational Standard Co. for specific performance of a written contract wherein defendant is vendee, entered into October 4, 1939, by complainant as such trustee and as grantee of Dorothea C. M. Meyer, as vendor, for the purchase and sale of real property situate in Hudson county of which Cord Meyer died seized.The case is submitted without proofs on the allegations of the bill, all of which are admitted by defendant's answer save the allegation that complainant has power and authority to make such a conveyance as will convey a good and marketable title.All the facts stated herein are gathered from the bill and from copies of the will, codicil and contract annexed to the bill.

Cord Meyer died July 5, 1911.By his will and codicil he gave to his wife Dorothea C. M. Meyer, his entire personal and real estate to hold for her life, and "upon the death" of his wife, he gave and devised his entire estate to his executors in trust to sell "as soon after the death" of his wife as might be practicable and out of the proceeds of sale to pay (first) five specific legacies, with the proviso that should any of those legatees die before his wife, the legacy given to such individual should fall into his residuary estate and (second) to pay the remainder of the proceeds of sale to twenty individuals and their successors in equal shares, except that should Doretta Mauer(one of said twenty individuals) die before his wife, her share should be paid to her son.

He appointed his wife executrix, "and upon her death and for the purpose of executing the trust and sales and distribution hereinbefore made and mentioned,"he appointed Frida Werhan and Otto Buhring her successors as executors.By his codicil he appointed Henry Hoyer to be an additional "executor and trustee" after his wife's death.Letters testamentary were granted the wife by a court not named and she continued as such executrix until April 13, 1939, when she petitioned the Hudson orphans' court for her discharge and that court by its order entered May 26, 1939, discharged her as executrix and appointed complainantexecutor and sole trustee under testator's will and codicil, Frida Werhan having renounced that office and Henry Hoyer having died.

October 2, 1939, Mrs. Meyer released and discharged complainant as executor and trustee from all claims, demands and interest in the testator's estate, and particularly by reason of the life estate given her by testator's will and codicil.At the same time she conveyed to complainant as trustee aforesaid, her interest in the real property which, two days later, complainant contracted to convey to defendant.Complainant contends that Mrs. Meyer's act in surrendering her life estate and making said conveyance to him terminated her entire interest in the testator's estate and accelerated the time for distribution among the remaindermen, and that by virtue of his said appointment as executor and trustee, he now has power to sell the real property for the purpose of making such distribution, and to convey to defendant good title thereto.Mrs. Meyer is still alive.

Assuming that the Hudson orphans' court had jurisdiction to appoint complainantexecutor and trustee, decision as to his power to sell and to convey a good and marketable title depends on a proper construction of testator's will and codicil and such construction is sought in this case without the presence of any party interested in the provisions of the will and codicil, on mere allegations of the bill which although admitted by defendant are not supported by any proofs,...