Potter's Ex'rs v. Adriance

• Decision Date: 16 May 1888
• Citation: 14 A. 16,44 N.J.E. 14
• Parties: POTTER'S EX'RS v. ADRIANCE et al.
• Court: New Jersey Court of Chancery

14 A. 16

44 N.J.E. 14

POTTER'S EX'RS

v. ADRIANCE et al.

Court of Chancery of New Jersey.

May 16, 1888.

On bill for construction of a will, brought by the executors of David M. Potter against Sarah K. Adriance and others.

Joseph Cross, for complainants.

MCGILL, Ch. The bill is filed for the construction of the will of David M. Potter, deceased. The will was made on the 5th day of December, 1872, and the testator died on the 3d day of February, 1879. The will directs that the testator's debts and funeral expenses shall be paid, and then gives the entire personal estate to his wife, in her own right, and provides that no account shall be rendered therefor. It proceeds as follows: "Item. I direct that all my real estate shall remain under the absolute control of my wife until my son Stephen S. Potter becomes of age, and I also direct that my wife shall have the use of the house and one-third of the proceeds of the farm until sold. Item. At any time after my son Stephen S. Potter attains the age of twenty-one years, and a majority of the heirs so directing, the real estate may be sold either by public or private sale, as a whole or in lots, and upon such terms as a majority of the heirs shall have decided upon. Item. Whenever the real estate, or any portion thereof, is sold, I direct that one-third of the proceeds of such sale be given to my wife in her own right, and the residue and remainder thereof to be equally divided among my children, William S. Potter, Charles H. Potter, Sarah Kate, wife of Edgar Adriance, Anna E. Potter, David M. Potter, and Stephen S. Potter, share and share alike. Lastly. I hereby appoint my beloved wife, Elizabeth Potter, and my son William S. Potter, my executors of this my last will and testament." The children mentioned in the will were all the children and heirs at law of the testator. In 1879 the youngest child, Stephen S. Potter, became of age, and in 1881 the son Charles H. Potter died, leaving a widow and two infant children, to whom, by his will, he devised and bequeathed all his estate, real and personal, in equal shares. The personal estate was sufficient to pay all the testator's debts. It is now desired that the farm shall be sold, and the executors seek instruction (a) whether they have power to sell the farm when they shall be directed to do so by a majority of the heirs; (b) who are intended by the words "the heirs," as those words are used in the will; (c) whether "the heirs" are to decide if the land shall be sold at public or private sale, and in whole or in part; (d) what the meaning of the word "terms," as used in the will, is; and (e) whether they, in their capacities as executor and executrix, are charged with the duty of distributing the proceeds of the sale of the real estate. The surviving children of the testator, and the husband or wife of each of them, and the widow and children of the deceased son Charles H. Potter, are the defendants in the suit. They have all failed to answer, and the bill has been taken as confessed against all of them but the infant defendants, and, as well, its allegations have been established by proofs regularly taken. The primary and most important question in this inquiry is whether the contemplated sale of the farm is to be made by the executors. In discussing this question I must necessarily answer the other questions that the...