Marsh v. Taylor

• Decision Date: 01 September 1887
• Citation: 43 N.J.E. 1,10 A. 486
• Parties: MARSH and another v. TAYLOR, Ex'r, etc.
• Court: New Jersey Court of Chancery

10 A. 486

43 N.J.E. 1

MARSH and another

v. TAYLOR, Ex'r, etc.

Court of Chancery of New Jersey.

September 1, 1887.

(Syllabus by the Court.)

On demurrer to bill for relief.

John W. Taylor, for demurrant. Frank E. Bradner, for complainants.

MCGILL, Ch. The bill was filed on December 1, 1886, in behalf of the complainants, who are infants. It alleges that Stewart C. Marsh died in October, 1885, leaving a will, dated on June 3d of that year; that in and by this will, after making provision for the payment of his debts, funeral and testamentary expenses, and the cost of the erection of a monument, and after giving to his son, Albert R. Marsh, the use of a building, with the furniture and fixtures therein, for his life, and to the complainants, who are his grandsons, property in Jerseyville, Illinois, and to others specific legacies, the testator provided as follows: "Seventh. My will is that after all my debts and legacies are fully paid and satisfied by my executor, as above directed, then and in that case my will is, and I do give, devise, and bequeath, to my friend and executor hereinafter named, and to his executors and administrators, forever, all the remainder of my estate, real and personal, whatsoever and wheresoever, not otherwise given and disposed of in this my will, in trust nevertheless, to dispose of the same in the manner following, viz.: To keep the same safely and securely invested in real estate, first bonds and mortgages, and government bonds, or on deposit in some reliable savings institution, and from the profits and interest arising therefrom to pay all taxes, assessments, and other expenses that may arise against my estate, and to keep in necessary repair all buildings, fences, etc., which may be erected thereon. Eighth. From the unused interest and profits, I further direct my executor or his successor to pay to the aforesaid John and Stewart, and to each of them, one quarter of the same, in semi-annual payments, during the life-time of their father; the remaining one-half to be paid to Albert R. Marsh, in semi-annual payments, during his natural life; and at his decease to divide my estate equally between my grandchildren, or the survivors of them, share alike, to them, their heirs and assigns forever."

The bill further alleges that the defendant, Henry B. Taylor, was appointed sole executor of the will, and that upon the admission of the will to probate, on the ninth day of November, 1885, he assumed the executorship; that the residue of the estate, after the payment of the debts, legacies, etc., is about $100,000, and consists' of productive real estate, and bonds secured by first mortgages, and other personal property, from which the executor has received income since the death of the testator, which he has allowed to accumulate in his hands; that the executor has paid to Albert R. Marsh about $1,000, but has not paid any moneys to complainants; that complainants need money for their support and education; and also that the testator left three grandchildren him surviving, the complainants and Albert Marsh, an infant. It prays that the executor may account for the income from the principal of the estate, and be decreed to pay to each of the complainants one-quarter of the unexpended interest and profits, from the death of the testator; and that complainants may have such other and further relief as the nature of the case may require, etc.

To this bill the executor demurs, on the grounds that it fails to show a case for equitable relief, and it has not been made to appear that at the time of the filing of the bill the complainants were entitled to the payment to them of any of the income, interest, and profits that may have accrued since the death of the testator, or that they are entitled to an account as prayed for.

The position taken for the complainants at the argument was that they are entitled to a share of the clear income of the residue, as minor grandchildren of the testator in need of the money for their support and education. It is the rule that an executor cannot be compelled to pay a general legacy until the expihation of one year from the testator's death, and that interest on the legacy maybe recovered after the expiration of the year as damages for the delay in payment. Where, however, the legacy is to a minor child of the testator, or to one to whom the testator stood in loco parentis, interest will be allowed from the testator's death, as a provision for maintenance, where no provision is made by will or otherwise for the support of such legatee. Welsh v. Brown, 43 N. J. Law, 40, and cases cited. This exception in favor of a minor child without maintenance does not extend to minor grandchildren. Brinkerhoff v. Merselis' Ex'rs, 24 N. J. Law, 682; Howard v. Francis, 30 N. J. Eq. 448.

The proper definition of a person in loco parentis, to use the words of Chief Justice Green, in Brinkerhoff v. Merselis' Fx'rs, "is a person who means to put himself in the situation of a lawful father of the child, with reference to the father's office and duty of making provision for the child." The bill does not contain allegations to sustain this relationship between the complainants and the testator. On the contrary, it shows that the father of the...