Hartson v. Elden

• Citation: Hartson v. Elden, 50 N. J. Eq. 522, 26 A. 561 (N.J. Ch. 1892)
• Decision Date: 01 October 1892
• Court: New Jersey Court of Chancery
• Parties: HENRY HARTSON, administrator cum testamento annexo de bonis non of Nathan Elden, deceased, v. PERLEY ELDEN et al

26 A. 561

50 N.J.E. 522

HARTSON

v. ELDEN et al.

Court of Chancery of New Jersey.

May 3, 1893.

(Syllabus by the Court.)

Bill for the construction of a will by Henry Hartson, administrator cum testamento annexo de bonis non of Nathan Elden, deceased, against Perley Elden and others.Heard on bill, answers, cross bill, and proofs.

W. E. Potter, for complainant.L. Newcomb, for respondentsPerley Elden and others.

R. P. Teller, for respondent Oak Hill Cemetery.S. M. Dickinson, for respondent Lombard University.

McGILL, Ch. Nathan Elden, of Vineland, died in September. 1875, testate, leaving his widow him surviving.His nearest kin are a large number of cousins, who are partiesdefendant in this suit.By his will, Mr. Elden first directed the payment of his debts, and then gave his real and personal estate to his widow for her life.Then the will continued in this language: "Third.After the demise of my wife, the interest of five thousand dollars of my estate shall be used to keep in repair our graves in the Oak Hill Cemetery, of Vineland, the remainder of said interest to be employed in the general improvement of said cemetery; and the lawful authorities of Vineland are hereby empowered to see that said funds are used for the purposes above designated.Fourth.The interest of five thousand dollars more of my estate, if it remains after the death of myself and my wife, shall be used to keep in repair the graves of my father, mother, sister, and brothers, in Buxton, Maine; and two thousand dollars of the principal named in this paragraph may be employed in building a monument for all my aforesaid relatives.The lawful authorities of Buxton are hereby authorized to carry into effect this clause of my will.Fifth.I also bequeath the sum of one thousand six hundred and twenty-five dollars to the Lombard University, of the city of Galesburg, Illinois."The will failed to appoint an executor.Letters of administration cum testamento annexo were first issued to the widow, and afterwards, upon her resignation of her office as administratrix, letters were issued to the complainant.The testator's widow is now dead, and it appears that the estate consists of real estate worth about $1,500, and personalty worth about $8,500, in addition to three promissory notes which were made by the Lombard University to the testator, and which, in the aggregate, amount to $1,623.73.They bear interest at the rate of 10 per cent. per annum, which interest was paid up to the date of the death of the widow.The university claims that the bequest of $1,625 to it was in performance of an agreement between it and the testator that if it would pay 10 percent. per annum on its three notes, which it might lawfully agree to do in Illinois, where the notes were made, he would give the notes to the university upon the death of himself and his wife, and the university demands that the complainant shall deliver to it its notes in satisfaction of the legacy.The complainant now asks direction (1) whether the legacies bequeathed by the will are charged upon the testator's real estate; (2) whether the notes of the Lombard University shall be surrendered to it in satisfaction of the legacy for $1,625; and (3) to whom the moneys contemplated by paragraphs 3 and 4 of the will shall be paid.The next of kin and heirs at law of the testator claim that the third and fourth paragraphs of the will are void because they are too vague and indefinite to be enforced, and because they create perpetuities for uses not charitable.The Oak Hill Cemetery Company claims that by the third paragraph of the will a valid trust was created in it.There was no appearance for the Buxton Cemetery.

The next of kin and heirs at law deny knowledge of the agreement alleged to have existed between the Lombard University and the testator, and by so doing put the complainant and the university to proof of the agreement.The testimony produced to prove the agreement is entirely hearsay, and so unsatisfactory that it fails to accomplish its purpose.As the agreement is not established, no direction will be given with reference to it.If it does not exist, the plain duty of the administrator will be to collect the notes and pay the legacy.

The legacies contemplated by the third and fourth paragraphs of the will are of interest of funds of specified amounts, to be taken from the testator's "estate."No limit of time during which the interest is to be paid is fixed.The will does not even contemplate an ultimate gift of the funds from which the interest is to spring.The interest is payable indefinitely,—forever.Such a gift of the produce of a fund, directly or through an intervening trustee, is a gift of the fund itself.Craft v. Snook's Ex'rs, 13 N. J. Eq. 121;Gullick's Ex'rs v. Gullick, 25 N. J. Eq. 324, on appeal 27 N. J. Eq. 498;Huston v. Read,32N. J.Eq. 596;Post v. Rivers,40 N. J. Eq. 21;Bishop v. McClelland's Ex'rs, 44 N. J. Eq. 450, 16 Atl. Rep. 1;Lippincott v. Pancoast, 47 N. J. Eq. 26, 20 Atl. Rep. 360.The principal funds established by the third and fourth paragraphs are to come from the testator's "estate.""The word 'estate' is genus generalissim, and includes all things real and personal,"(per Lord Holt, Popham v. Banfield, 1 Salk. 236;Whittaker v. Whittaker, 40 N. J. Eq. 33, 37;Cook v. Lanning, 40 N. J. Eq. 369, 372, 3 Atl. Rep. 132;) and when legacies are directed to be paid out of the "estate" of a testator, and there is nothing to restrict the meaning of the word "estate" to perBonalty, the real estate is held to be charged with the legacies.Cox v. Corkendall,13 N. J. Eq. 138;Hunt v. Hunt,4 Gray, 190, 193;Jackson v. Housel, 17 Johns. 281.The meaning of the testator, then, was to give two funds of $5,000 each from his entire estate, real and personal, the income from which was to he perpetually used for indicated purposes.He did not expressly name the legatees of the fund he thus created, and, as I deem the legacies to be void for reasons hereafter given, it is not necessary to discuss the question who the legatees were.I will assume, for the purpose of presenting the points hereafter considered, that the testator intended that the cemetery companies should take the respective funds.And, in passing, I should say that under this assumption the office of the reference to the "lawful authorities of Vineland" and the "lawful authorities of Buxton "may be esteemed to be the appointment of visitors with power and authority, so far as the testator could bestow it, to inquire into and enforce the due observance of his trusts; those visitors to be the municipalities of Vineland and Buxton, by whatever corporate names they may be known and may have the right to act.It is observed that in each case the trust was intended to be a perpetual one.That fact gives rise to the claim of the next of kin and heirs at law that it is void, because...