Stevens v. Flower

• Decision Date: 19 March 1890
• Citation: 46 N.J.E. 340,19 A. 777
• Parties: STEVENS v. FLOWER.
• Court: New Jersey Court of Chancery

19 A. 777

46 N.J.E. 340

STEVENS

v. FLOWER.

Court of Chancery of New Jersey.

March 19, 1890.

On bill for construction of the will of Aaron Flower.

H. M. Nevius, for complainants. James Stem, for defendant.

MCGILL, Ch. Aaron Flower died on the 4th of June, 1878, having made his last will, bearing date on October 12, 1876, by which, after directing the payment of his debts and funeral expenses by his executors, he gave to his daughter-in-law, Augusta, a legacy of $500, to be paid at the death of his (the testator's) wife, with the proviso that, if his wife should be of the opinion that the necessities of Augusta should require it, the legacy might be paid before the appointed time. Following these provisions the will continues in the following language: "I give and bequeath unto my beloved wife, Mary P. Flower, the use and income of all the residue of my estate, real and personal, during her natural life, and to use as much of the principal as she may need; and I do hereby authorize and empower her to sell and dispose of all or any part thereof at her discretion, and to give good and sufficient deed and deeds for all or any part of the landed property of which I may die seised and possessed. I hereby nominate and appoint my friends D. H. Morris and Wm. R. Stevens, of said township of Eatontown, trustees, at the death of my said wife, of all the remainder of my estate, real and personal; and I desire the said trustees to take the possession and hold the same for the benefit of those persons hereinafter named, to-wit: One-half part thereof I give and bequeath unto my grandson, Aaron P. Flower, to be paid to him upon his attaining the age of twenty-one years. Should my wife die before that period arrives, the said trustees will make suitable provision for his maintenance and education; and should he, my said grandson, incline to habits of intemperance, or exhibit a propensity to waste and squander the same, which I hope will not be the case, the said trustees may, in their discretion, withhold the payment thereof to a later period of time, not to exceed nine years. The other half of my estate the said trustees will invest upon such securities as they may think best, and collect the interest thereon as the same becomes due, and pay it over to my son, Francis L. Flower, until his death. Should other children hereafter be born to the said Francis L. and Augusta Flower, my will and wish is that such child or children shall have the principal at the death of the said Francis L. Flower; and, if more than one, to be equally divided between them, and if no other child be left to inherit the same, my will is, and I do hereby give and bequeath the whole to my said grandson, Aaron P. Flower; and, in the event of his death before the time when by this, my last will and testament, he shall receive the bequest or money herein bequeathed to him, and have a brother or sister or brothers or sisters, I hereby give the same to them, share and share alike; and, if there be none, in that case my will is that the whole shall go to my said son, Francis P. Flower, and Augusta, his wife, and the survivor of them." Provision is then made for the appointment of new trustees, and power of sale is given to the trustees. The testator's personal estate was more than sufficient to pay his debts and the $500 legacy. His widow survived him, and after his debts were paid took the balance of the personalty, and applied it to her own use. She also sold a portion of her husband's lands, and used the proceeds of sale. She died in April, 1889, having then consumed all her husband's estate except a parcel of 20 acres of land, upon which she resided. By her will, made in July, 1883, she gave her entire estate to her son, Francis, by the following language: "Second. I give, devise, and bequeath unto my son, Francis L. Flower, all my property, both real and personal, whatsoever, and where so ever the same may be found, including my horse, carnage, and harness, silver plate, stock in Commercial Fire Insurance Company of New York, and my household furniture." In June, 1881, Augusta Flower separated from her husband, Francis, taking their son, Aaron, with her, and later was divorced from him, and married to one Albert Kelly. Daniel H. Morris is dead. Aaron P. Flower is not yet 21 years of age.

The object of the bill in which William R. Stevens, Augusta Kelly, and Aaron P. Flower, by his next friend, join as complainants, and to which Francis L. Flower is the defendant, is to have it determined whether the legacy of $500 to Augusta Kelly is a charge upon the remaining 20 acres of Aaron Flower's land, and, if so, to have it paid thereout, and also to have it settled whether that land is subject to the trust provided by the will. The answer admits the facts alleged in the bill, and makes issue by denying that the legacy is a charge upon the land, and insisting that Mary P. Flower took the fee of the land, which by her will she transmitted to her son. Two questions have thus been presented by all the parties who are interested in their determination, to-wit, whether the legacy of $500 is a charge upon the land in question; and, second, whether the widow of Aaron Flower took a fee in the land.

Legacies are ordinarily payable out of the personal estate of a testator; and they will not be paid from the realty unless the testator expressly, or by implication, charges them upon it. In determining whether they are charged by a will upon realty, reference may be had, not merely to the expressions of the will, but also to the situation of the property disposed of and of the persons taking, and parol evidence is admissible to show such extrinsic circumstances. Van Winkle v. Van Houten, 3 N. J. Eq. 186; White v. Executors of Olden, 4 N. J. Eq. 362; Adamson v. Ayres, 5 N. J. Eq. 353; Snyder v. Warbasse, 11 N. J. Eq. 466; Dey v. Dey's Adm'r, 19 N. J. Eq. 137; Johnson v. Paulson, 32 N. J. Eq. 395. In the case now considered the legacy was not, by the will, expressly charged upon the land. The testator first directed that his debts and funeral expenses be paid, then gave the legacy, and directed that it be paid at his wife's death, or before that time if his wife pleased, and then gave the use and income of the "residue" of his estate, real and personal, to his wife for her life, with power to use so much of the principal as she might need, and to sell and dispose of his estate at her discretion, giving sufficient deeds for the lands that she might sell. Here was a massing of the real and personal property as one estate, and the disposition of the residue of that single mass. No distinction is made between the realty and the personalty. It is contemplated that there will be a residue of the massed property, which is to be composed of both real and personal estate. The indications all point to the conclusion that the testator did not consider that one kind of his property would be exhausted before the other should he resorted to, but, on the contrary, that he looked to an equal exhaustion of both in the payment of the debts, funeral expenses, and legacy. In Hawk. Wills, 294, it is laid down as a rule of construction that if legacies are given generally, and the residue of the real and personal estate is afterwards given in one mass, the legacies are a charge on the residuary real, as well as the personal, estate. The earlier cases in this court did not adopt this rule but held that a gift of blended realty and personalty as residue after general legacies was not in itself sufficient...