Traphagen v. Levy

• Citation: 18 A. 222,45 N.J.E. 448
• Parties: TRAPHAGEN v. LEVY et al.
• Decision Date: 03 September 1889
• Court: New Jersey Court of Chancery

18 A. 222

45 N.J.E. 448

TRAPHAGEN

v. LEVY et al.

Court of Chancery of New Jersey.

Sept. 3, 1889.

(Syllabus by the Court.)

On bill for construction of will.

John Levy died in March, 1881, having made his last will, which has been duly admitted to probate, in which, after directing the payment of his debts and funeral expenses, he uses this language: quot;Second. I do nominate, constitute, and appoint my friends Christopher Reed and Henry Traphagen executors of this my last will and testament, and give them the care and custody of my estate, and to pay all the legacies as herein directed." The executors are then directed to sell the testator's business, and out of the proceeds of such sale to pay any mortgage there may be at his death on his property, and, if that fund should prove to be insufficient to make such payment, to then sell his house. No. 186 Jersey avenue, in Jersey City, and apply the proceeds of its sale to that payment. If there should be a surplus of such proceeds after the payment contemplated, it is to be invested on bond and mortgage. The will then proceeds as follows: "Third. I give to my beloved wife, Rebecca, all my household furniture and one-third of the income derived from my real estate after the payment of the taxes, assessments, and all necessary repairs." Designation is then made of a portion of the testator's real estate to be occupied by his widow, to use the language of the will, "free of rent during her natural life, or as long as she shall remain my widow, and, in the event of her remarrying again, then the income to be derived from said estate shall go to, and be equally divided among, my sons, Lewis and David, and my daughters, Mary Ann, Sarah, and Louisa, the above bequest being in lieu of dower." The will continues: "Fourth. I give to my children, Lewis, David, Mary Ann. Sarah, and Louisa, each two-fifteenths of the income of my real and personal estate after the payment of all taxes and assessments levied on the same, and for necessary repairs, during their respective lives, and, in case of the death of any of my said children, hereinbefore mentioned, leaving lawful issue him or her surviving, then the share of the income, as aforesaid, shall descend to, and be divided among, the child or children of my sons, Lewis and David, and my daughters, Mary Ann, Sarah, and Louisa, per stirpes, and not per capita, except as to the children of my son Lewis by his first wife, who are not in any event to have or derive any income or benefit from my estate. And in case of the death of my son Lewis without leaving other issue him surviving, then the income of my real and personal estate so bequeathed shall go to and be divided among his brothers and sisters as if he had no child. And in case of the death of Lewis leaving lawful issue him surviving other than the children of his first wife, then they are to receive the share of their father; but, in case my said children shall die without leaving lawful issue, then my said estate to go to and be vested in my brothers and sisters, share and share alike, the incomes aforesaid to be paid quarterly, and to commence on the 15th of each month. And in case any of my children shall assign or transfer, or attempt to assign, transfer, or mortgage, his or her share, then the share of such child or children so as aforesaid either transferring, assigning, or mortgaging shall forfeit and go to and be divided among my children not so transferring, assigning, or mortgaging." The testator's widow and all his children survived him. The widow and Christopher Reed are now both dead. In paying the debts the personal estate was entirely exhausted. The surviving executor is in possession of the real estate, and, quarter yearly, divides the entire income equally among the testator's five children. Those children are all married, and, with the exception of the daughter Sarah, have lawful issue. Lewis has two children by his first wife, who obtained a divorce from him, and three children by a second wife.

The bill alleges that the children of the testator claim that the income of one-third of the real estate was given to the testator's widow for life, and that no disposition was made of the principal fund representing that one-third after the life-estate, but as to it their father died intestate, and that consequently it descended to them as his heirs at law; and, further, that the devise of two-thirds of the income to them, and its indefinite limitations to their children in the event of their death, suspends the power of alienation too long, and is void, and ...