Lavaggi v. Borella
| Decision Date | 24 October 1907 |
| Citation | 73 N.J.E. 419,67 A. 929 |
| Parties | LAVAGGI v. BORELLA et al. |
| Court | New Jersey Court of Chancery |
(Syllabus by the Court.)
Bill by John C. Lavaggi against Pierino Borella and others to construe a will. Decree rendered.
On bill for the construction of the following instrument, admitted to probate as the will of Fortunata Borella by the surrogate of Hudson county:
"I the undersigned Fortunata declare this will to leave to these heirs.
To my son Pierino dollars two thousand......................
$2000.00
To my daughter Maria I say one thousand......................
1000.00
To my daughter Carolina I say one thousand..................
1000.00
To my daughter Angiolina I say one thousand..................
George McEwan, for complainant. Max A. Sturm, for defendants.
MAGIE, Ch. (after stating the facts as above). The first question presented in this case is whether the complainant has a standing to require the relief sought for in his bill, viz., a construction of the meaning of the will of Fortunata Borella and instruction as to the performance of his duties. This depends upon whether he occupies, in relation to the property of the deceased, a position of trust. Hoagland v. Cooper, 65 N. J. Eq. 407, 56 Atl. 705. Complainant's bill was first filed as if he were an executor appointed by the testatrix under that will. Upon it being ascertained by his counsel that when the will was admitted to probate the letters testamentary were issued to complainant by the surrogate, not as executor, but as administrator with the will annexed, the bill was amended, and the relief is now sought in the character of administrator with the will annexed. There are no words in the will that declare expressly that complainant was appointed executor. Such a declaration would clothe him with all the powers of an executor. But there may be a constructive appointment of a particular person to be executor in a will, although he is not named therein as such. Whenever the terms of the will clearly indicate that the person named is to perform the duties of an executor, such as to pay the debts, to pay legacies, or to distribute, then that person, though not named as executor, or even though named as trustee, may be deemed to have been constructively made executor, and letters will issue to him, in the language of the books, as "executor according to the tenor." Williams on Exr's (2d Am. Ed.) 196; Schouler's Ex'rs & Adm'rs, §§ 36, 37; In Goods Baylis, L. R. 1 P. & D. 121; Dairy v. Natick, 10 Allen (Mass.) 174; In Goods Punchard, L. R. 2 P. & D. 369; In Goods Wilkinson, [1892] P. Div. 227; In Goods Russell and Laird, Id. 380. The declaration of the testatrix (after she had indicated a clear intention to give specific legacies to four persons shown to be her children, and then a disposition of the rest of her estate) that "all shall be managed by the sole trustee John C. Lavaggi," seems to me to compel an inference that the estate out of which these legacies are to be raised and from which the residuum is to be disposed of is to be distributed and disposed of by Lavaggi, and, if so, a further inference is necessary that any debts of the testatrix should be paid previous to distribution. Upon this inference, which I deem a fair one, Lavaggi is to pay the debts and legacies and distribute the residuum, and so to perform the duties of an executor. He is therefore an executor of the will "according to its tenor"; and, as the position of administrator with the will annexed is substantially that of an executor according to the tenor, it seems to me that he has a right to invoke the aid of this court in the performance of his duties as executor or administrator.
The evidence put in under a rule for proofs discloses the following facts: The personal estate of testatrix consisted of deposits in two savings banks, amounting in all to $1,770. Testatrix was also the owner of real estate for which she had paid, a short time before her death, the sum of $3,700. This condition of her estate must be presumed to have been in the mind of testatrix when she made this will. It must have been evident to her that the legacies bequeathed to her four children, added to the legacy to her daughter Louisa, largely exceeded the personal property of which she was possessed. This circumstance alone will not justify the conclusion that testatrix intended that the legacies bequeathed should be charged upon the real estate, although, without resort to the real estate, they could not be paid. But where, after legacies are given generally, the residue is given in one mass, the legacies are a charge upon the residuary real and personal estate. Corwine v. Corwine, 24 N. J. Eq. 579; Johnson v. Poulson, 32 N. J. Eq. 390; Stevens v. Flower, 46 N. J. Eq. 340, 19 Atl. 777; ...
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