Goeke v. Pierson
| Decision Date | 24 February 1948 |
| Docket Number | 158/392. |
| Citation | 57 A.2d 370 |
| Parties | GOEKE v. PIERSON et al. |
| Court | New Jersey Court of Chancery |
Suit by Harriet N. Goeke, executrix and trustee under the will of Frank Hammell, deceased, against Bertha Pierson and others to determine whether will conferred on the complainant a power of sale of certain realty forming a portion of the residuary trust estate.
Decree holding that complainant had power to sell realty.
Syllabus by the Court
.
1. Where a sale of the real estate is necessary to carry out the purposes of the testator, the power to make the sale will be given by implication, as otherwise the intention of the testator might be defeated.
2. Fiduciaries to whom a residuary estate, consisting of real and personal property, was devised and bequeathed, in trust, to keep the same invested and to pay monthly, from the income arising therefrom or from the corpus thereof, fixed amounts, to the testator's wife for life then to his daughter for life, and thereafter, upon the occurrence of specified contingencies, to divide it among six named relatives, share and share alike, have, by implication, the power to sell real estate to effectuate the testamentary purposes.
David Deitz, of Trenton, for complainant.
No appearance for defendants.
JAYNE, Vice Chancellor.
The inquiry to be answered in the present cause is whether the last will and testament of one Frank Hammell which was admitted to probate by the Surrogate of the County of Mercer on December 3, 1942, confers upon the complainant, his executrix and trustee, a power of sale of certain real property which formed a portion of the residuary trust estate.
The fourth and fifth articles of the decedent's will are particularly pertinent and significant.
‘Fourth: I give, devise and bequeath all of the rest, residue and remainder of my Estate, both real and personal, of whatsoever kind or description, and wheresoever found, of which I may die seized or be in any way entitled at the time of my death to my executrices and trustees hereinafter named in trust nevertheless to keep the same invested and from the income arising therefrom, or from the corpus of my Estate, to pay my wife $150.00 each and every month, during the term of her natural life; to begin immediately after my death; and if by reason of sickness, or otherwise, said $150.00 per month shall not maintain and support my wife, in comfort, then I do direct that she shall receive sufficient money either from the income or corpus of my Estate, to make her comfortable.
‘If my daughter shall predecease her husband leaving child or children of her body, her surviving, then I give, devise and bequeath said residue of my estate to such child or children of my deceased daughter, Harriet N. Goeke.
‘I...
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...Walker's Will, 258 Wis. 65, 45 N.W.2d 94, 95, 823 A.L.R.2d 991; Whisman v. Roberts' Ex'r, 306 Ky. 433, 208 S.W.2d 305; Goeke v. Pierson, 141 N.J.Eq. 294, 57 A.2d 370, 371.) Fourth: Were the Sherman group deprived of due process of law in that they did not have notice and an opportunity to b......
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Agisim v. Tillou Realty Co.
...intent. Busch v. Plews, supra. A situation quite similar to the one Sub judice was before the court in Goeke v. Pierson, 141 N.J.Eq. 294, at page 296, 57 A.2d 370, at page 371 (Ch.1948), and, after citing numerous other decisions in this state on the point, the court said: 'Where the implic......
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