MCClellan v. Larchar

• Court: New Jersey Court of Chancery
• Writing for the Court: MCGILL, Ch.
• Citation: McClellan v. Larchar, 45 N.J.Eq. 17, 16 A. 269 (N.J. Ch. 1889)
• Decision Date: 27 December 1888
• Parties: MCCLELLAN v. LARCHAR.

16 A. 269

45 N.J.E. 17

MCCLELLAN

v. LARCHAR.

Court of Chancery of New Jersey.

December 27, 1888.

(Syllabus by the Court.)

Bill for specific performance, by Ellen M. McClellan against Frank M. Larchar.

George F. Canfield, for complainant. James W. Field, for defendant.

MCGILL, Ch. The object of this suit is to compel the defendant to specifically perform his written agreement to purchase the late residence of Gen. George B. McClellan, at Orange, in this state. The only question between the parties is whether the complainant, under the will of her husband, has power to sell the real estate in question. She has tendered to the defendant, not only her individual deed, but also her deed as executrix and trustee under the will; and her children have offered to join in any conveyance that may be necessary from them to perfect the defendant's title. Gen. McClellan died, seized of the premises in question, on the 29th of October, 1885, leaving a will, which was subsequently proved, before the surrogate of Essex county, on the 21st of July, 1888. Letters testamentary were issued to the complainant alone. After revoking all previous wills, the instrument under consideration provides as follows: "First. After the payment of my just debts and funeral expenses, I give, bequeath, and devise to my beloved wife, Ellen Marcy McClellan, all the estate, both real and personal, of whatever nature, and wheresoever situate, of which I may die seized or possessed, or to which I may be entitled at the time of my death, the same to be held and enjoyed by her fully and absolutely, and without restriction of any kind, with full power to alienate, convert, or dispose of the same in such manner as she may deem best. Second. Upon the death of my said wife, or if she should not survive me, I direct that all my estate, real and personal, herein mentioned, or so much of it as remains the property of my wife on her death, should she-survive me, with the exception of such articles as are hereinafter specifically bequeathed, be divided between my two children, George B., Jr., and Mary M., share and share alike." The testator then provides that his son, George, shall receive his share "at once, without restriction," if he shall have attained the age of 21 years at the time of the testator's wife's death, should she survive the testator; and otherwise, at the testator's death, and that if he should not be 21 years old at either of said events that his share should be held in trust for him until he should reach that age. Provision is next made for putting the share of the daughter in trust for her benefit, and also for the death of one child before the other, during their mother's life. The will then continues: "Should my wife survive both my children, I leave her entirely at liberty to dispose of all the estate, both real and personal, accruing to her under the provisions of this will, as she may deem best, knowing that she will, as far as practicable, carry out what she thinks my wishes would have been." Bequests are then made of his library, watch, signet ring, swords, uniforms, and military equipments, to "take effect" after the death of his wife. The testator then names a literary executor, and appoints his wife the executrix of his will and the guardian of his children, and authorizes her, if she deems it best to do so, to associate another with her in the executorship. He provides for an executor of his will, and a guardian of and a trustee for his children, in the event of the death of his wife during their minority, and prescribes the duty of such trustee. He gives his wife power, upon the marriage of his daughter, or by the wife's will, to terminate the trusts of the daughter's share in the estate, so that it may become absolutely the daughter's property; and he lastly provides that the trustee who shall act under his will, for the purpose of carrying out the will, shall be empowered to sell any and all of his real estate, and give good and sufficient deed or deeds to the purchaser or purchasers thereof.

It is obvious, upon reading this will, that the testator's scheme was to give his entire estate to his wife in fee, except his library, swords, military effects, watch, and signet ring. His provision is that she may enjoy such property "fully and absolutely, without restriction of any kind," and have full power to alienate, convert, and dispose of it as to her may seem best. Such a devise carries a fee. Borden v. Downey, 35 N. J. Law, 74, on error, 36 N. J. Law, 460; Dutch Church v. Smock, 1 N. J. Eq. 148; Annin's Ex'rs v. Vandoren's Adm'r, 14 N. J. Eq. 135; Den v. Humphreys, 16 N. J. Law, 28; Armstrong v. Kent, 21 N. J. Law, 519, on appeal, 6 N. J. Eq. 637; Den v. Young, 23 N. J. Law, 481; Cantine v. Brown, 46 N. J. Law, 599; Schouler, Wills, § 559. As was said by Chancellor KENT, in pronouncing the judgment of the court of errors of New York in Jackson v. Robins, 16 Johns. 537, 588, and repeated by Mr. Justice DEPUE, in delivering the opinion of the court of errors and appeals, in Borden v. Downey, supra: "We may lay it down as an incontrovertible rule that where an estate is given to a person generally or indefinitely, with a power of disposition, it carries a fee; and the only exception to this rule is where the testator gives to the first taker an estate for life only, by certain and express words, and annexes to it a power of disposal. In that particular and special case the devisee for life will not take an estate in fee." Now, the design of the testator here, which is made conspicuous throughout his entire will, is that his wife shall hold and enjoy the property given to her, not for life, but "fully and absolutely, and without restriction of any kind." This design is made manifest even in the language used, when the testator speaks of that which he desires his children to take upon the death of his wife, for it will be observed that he there says nothing to indicate the slightest purpose to cut down the estate previously given to his wife, but, on the contrary, even in that part of his will expressly recognizes his wife as the absolute owner of the entire property. He only professes to deal, in the devise and bequest over to his children, with that which shall remain her property at her death. He expresses it: "So much of it as remains the property of my wife on "her death;" and later, contemplating the event of the death of his children before his wife: "Should my wife survive both of my children, I leave her entirely at liberty to dispose of all the estate, both real and personal, accruing to her under the provisions of this will, as she may deem best." In both of these expressions he declares that he deals with his wife's property, not with his own. Thus he exhibits a tenacity of purpose that the estate which he has given to his wife shall not be cut down. There is, then, a devise over to his children which is inconsistent with the wife's full enjoyment of the fee and right of disposition, and such a devise, under the well-settled rule, is void. It can neither be sustained as a contingent remainder, for such an estate cannot be limited upon a fee-simple, (2 Washb. Real Prop. 225,) nor as an executory devise, because such a devise cannot be defeated by the alteration of the estate after which it is limited. 4 Kent, Comm. 270; Armstrong v. Kent, 21 N. J. Law, 509.

In Annin's Ex'rs v. Vandoren, 14 N. J. Eq. 143, where a testator made absolute bequests to his daughters Lenah and Mary, and subsequently provided: "Should my daughters Lenah and Mary, or either of them,...