Henderson v. Henderson

• Decision Date: 22 July 1910
• Citation: 77 N.J.E. 317,77 A. 348
• Parties: HENDERSON et al. v. HENDERSON.
• Court: New Jersey Court of Chancery

77 A. 348

77 N.J.E. 317

HENDERSON et al.

v. HENDERSON.

Court of Chancery of New Jersey.

July 22, 1910.

Mr. Foardman, for complainants.

Mr. Dobbins, for defendant.

STEVENS, V. C. Ettie Henderson died leaving a will, by which she disposed of her entire estate, real and personal. After making specific bequests and devises, chiefly to her children and grandchildren, and after nominating Henry V. Condiet and her two sons, William and Francis, executors, she provided as follows: "In the event of the inability of Mr. H. V. Condict to serve as my executor, I appoint Mr. Walter Condict to serve in his place, and be it understood that no debts are owing by any relative." The bill charges that after the making of this will her son Frank, the defendant, became indebted to her in the sum of $3,000. The will was made on December 13, 1906. The testatrix died in October, 1909. The question is whether the debt contracted by Francis is released by the effect of the words "no debts are owing by any relative." The defendant's contention is that a will speaks as of the time immediately preceding testator's death; that, consequently, Mrs. Henderson must be regarded as having, at that time, declared that no debts were owing by any relative, and that the effect of this declaration was to discharge all her relatives, and, consequently, her son, from the payment of all or any debts owing to them that would otherwise have been due her estate.

It is no doubt true that a will is for some purposes regarded as speaking from the death. All property fairly falling within the descriptive words will pass whether acquired before or after the making of the will. It is said that the rule that it so speaks applies to the effect and operation of the will; to the ascertainment of the property passing by it, but that it does not apply to its construction. Gray v. Hattersley, 50 N. J. Eq. 213, 24 Atl. 721. It has, accordingly, been held that if the gift be to "my beloved wife," the bequest is to the wife living when the will was made; not to the second wife living at testator's decease; that if the bequest be to the parish in which testator is living it goes to the parish in which testator lived at the time he made his will, and not to the parish into which he has removed and may have been living at the time of his death. Garret v. Niblock, 1 Russ. & M. 620. The rule as to the ademption of specific bequests is another illustration. Jarman on Wills, Vol. 1 *280. In Smallman v. Goolden, 1 Cox, 329, testator gave to his son "all sum and sums of money due to me from him on bond or bonds or any other security," and Sir Lloyd Kenyon held that he must suppose testator meant to measure the bounty according to the situation at the time of making the will, and could not have in contemplation any future sums of money which the son might owe him. He therefore held that the subsequent bond was not included in the bequest. It is true that this case was criticized by Chancellor Walworth in Van Vecuten v. Van Veghten, 8 Paige (N. Y.) 104-110, where the language was, however, more comprehensive, but it seems to have been thought an authority under the old law in Everett v. Everett, 7 Ch. Div. 428, a case coming up under the statute of wills of 1 Vic. which compelled a more rigid construction. In this case, a testator, after reciting that his son was now indebted to him in various sums of money in respect of advances and that he was desirous that his son should be released and that the securities should be given up, bequeathed to him all the aforesaid moneys, and released him from all claims in respect of said...