In re Morton's Estate

• Decision Date: 13 July 1908
• Citation: 70 A. 680,74 N.J.E. 797
• Parties: In re MORTON'S ESTATE. BARNUM v. MORTON et al.
• Court: New Jersey Supreme Court

70 A. 680

74 N.J.E. 797

In re MORTON'S ESTATE.BARNUM

v. MORTON et al.

Prerogative Court of New Jersey.

July 13, 1908.

Appeal from Orphans' Court, Essex County.

In the matter of the estate of Ann C. Morton, deceased. Proceedings for the settlement of the account of Stephen C. Barnum, trustee of the estate of the deceased. From a decree of the orphans' court sustaining exceptions to the account interposed by Thomas F. Morton and others, Stephen C. Barnum, trustee, appeals. Affirmed.

Elvin W. Crane and William T. Read, for appellant.

John W. Queen, for respondents.

PITNEY, Ordinary. Ann C. Morton, late of Glen Ridge, Essex county, N. J., died on April 29, 1901, leaving a will and two codicils thereto which were admitted to probate by the surrogate of Essex county. She appears to have owned, first, her dwelling house at Glen Ridge, which after her death was sold for the payment of her debts; secondly, an apartment house in New York City known as the "Third avenue property," situate upon leased land; and, thirdly, a tract of unimproved property at Middle Village, Long Island, consisting of 20 or 27 acres laid out for sale in building plots. The Third avenue property produces a net income of from $2,200 to $2,500 per annum. By the second paragraph of the will testatrix devised all her real estate to trustees for purposes specified in the succeeding paragraphs, and in this paragraph defined the powers and duties of the trustees with respect to collecting and receiving the rents, managing, repairing, building, rebuilding, and improving the property, selling and conveying the real estate and leasing the same at their discretion, and investing and reinvesting the proceeds of sale. At the conclusion of the paragraph is the following clause: "It is my will that any provisions herein made respecting the payment of the rents derived from my property situated at Middle Village, in the town of Newtown, county of Queens and state of New York, and respecting the vesting of such property if unsold, or the proceeds thereof if sold, shall be subject to the payment of all encumbrances which may exist upon such property, and I hereby authorize my executors and trustees to pay off such encumbrances either from the proceeds of such property or from the income thereof as they shall deem best, one-half of such encumbrances to be borne by the principal of the trust hereinafter created for the benefit of the children of my son Thomas S. Morton, and the other one-half to be borne by the principal of the trust created out of the residue of my said estate." The third paragraph of the will establishes a trust with respect to "the net rents, income and profits" of the Middle Village property. Its provisions are long and involved, and it is not necessary now to quote them. The will in this and other respects was modified by the codicil, with the result that by the provisions of the will and codicils taken together the trustee is directed to pay the net income arising from all the property of the testatrix to her daughter Amelia A. Barnum during her life. After her death, the Third avenue property and five-eighths of the Middle Village property goes to her children, and the remaining three-eighths of the Middle Village property upon the death of Mrs. Barnum goes to the children of Thomas S. Morton, who was a son of the testatrix. Stephen C. Barnum, son-in-law of the testatrix, was constituted an executor and trustee, and he now remains sole trustee under the will. On May 20, 1907, he filed in the Essex county orphans' court his account as trustee under paragraph 3 of the will, to which exceptions were filed by the...