In re Folwell's Estate

• Decision Date: 20 November 1905
• Parties: In re FOLWELL'S ESTATE.
• Court: New Jersey Supreme Court

62 A. 414

68 N.J.E. 728

In re FOLWELL'S ESTATE.

Court of Errors and Appeals of New Jersey.

Nov. 20, 1905.

(Syllabus by the Court.)

Appeal from Prerogative Court.

In the matter of the estate of Susan M. Folwell, deceased. From a judgment of the Prerogative Court (59 Atl. 467), the executrix appeals. Reversed.

Norman Grey, for appellant. John F. Harned, for respondent.

FORT, J. This is an appeal from the Prerogative Court, and there is but a single question for decision, namely, does the last will and testament of Susan M. Folwell bequeath her personal estate to her daughter, Elsie, absolutely?

The following is the will: "Know all men by these presents that I, Susan M. Folwell, of Atlantic City, New Jersey, being of sound and disposing mind and memory, do make and publish this my last will and testament, hereby revolving all former wills made by me. I direct that all my just debts and funeral expenses be paid as soon as convenient after my decease. I give and bequeath to my son, Robert Lincoln Folwell, my white trotting horse, Eagle, with his harness and spindle wagon. I give, devise, and bequeath unto my daughter, Elsie Maynard Folwell (subject to the legal rights of my husband, Thomas G. Folwell, should he survive me) all the rest, residue, and remainder of my estate absolutely. I nominate, constitute, and appoint my said daughter, Elsie Maynard Folwell, sole executrix of this, my last will and testament. In witness whereof I have hereunto set my hand and seal this eighteenth day of March, A. D. 1895. Susan M. Folwell. [Seal]"

Thomas G. Folwell, the husband of the testatrix, survived her. The will was duly probated, and letters testamentary thereon granted to Elsie M. Folwell, as executrix, on October 23, 1902. The grant of these letters stands unrevoked and unappealed from. All the personal estate passed into the hands of the executrix, and she claims the right to retain it under the residuary clause of the will, except as to that specifically bequeathed to others. The executrix has never filed an inventory of the estate, and the husband filed a petition in the Atlantic county orphans' court for an order to require her to do so. The orphans' court made the order, and it was affirmed in the Prerogative Court.

If, under the will of the testatrix, Elsie took absolutely all the personalty not specifically bequeathed, she is not required to file an inventory. P. L. 1898, p. 759, § 120. The opinion of the ordinary in this case correctly construes our statute as to the right of a married woman to bequeath her personal property and to deprive her husband, by her will, of all interest therein; and it is not necessary to further discuss that question. The act of 1874 is clear upon that point Gen. St. vol. 2, p. 2014. Did the parenthetical clause in the residuary item of the will of Susan M. Folwell defeat the right of Elsie to the personal estate, owing to the survival of the husband? This clause gave the whole of the residue of the estate of the testatrix to her daughter, Elsie, "subject to the legal rights of my husband, Thomas G. Folwell, should he survive me." What did he take under this clause? By the plain words of the will he was to get only such rights as were "legal rights." It is clear that under this will all legal rights in the personalty of the testatrix passed to the executrix. She holds the legal title and the jus disponendl.

The executor, once appointed under the will of a wife duly probated, takes the legal title to her personalty, and the husband cannot be appointed administrator, except and until after the probate and order appointing the executor have been set aside by appeal. If he be appointed administrator after such probate and appointment, the proceeding is void. Ryno's Ex'r v. Ryno's Adm'r, 27 N. J. Eq. 522. An executor is a trustee, required to account for funds coming to his hands. He cannot be sued at law for an alleged beneficial interest which may be claimed by one in the estate of his testator. He may be required to account in equity or in the manner pointed out by the orphans' court. P. L. 1898, pp. 757-778, §§ 116-168. A right to an accounting by an executor is an equitable right only. The party holding the legal title to property only has a right to seek a remedy at law, even though he have no beneficial interest therein. The equitable owner is he who has not the legal estate, but is entitled to the beneficial interest. Bouvier, vol. 2, p. 24, "Legal Estate." The effect of a general probate of the will of a deceased married woman is only to enable the executor to get in all the assets of the wife, whether she have power to dispose of them or not, and it does not effect the beneficial title to them. Williams on Ex'rs, vol. 1, p. 465. Where a wife makes a will, giving all her personal estate to her husband, but appoints another than her husband as executor, the executor takes the legal title, and the equitable or beneficial estate only is in the husband under the will. When, therefore, a wife declares by her will that it is her purpose to give all of her estate to a named person, "subject only to the legal rights" of her husband therein, should he survive her, and where, by a statute, she has full power to bequeath her personal property absolutely, even as against her husband, as she may by our statute, she, by such a will, cuts off all the equitable or beneficial interest of her...