Turnure v. Turnure

• Decision Date: 17 June 1918
• Citation: Turnure v. Turnure, 89 N.J.Eq. 197, 104 A. 293 (N.J. 1918)
• Court: New Jersey Supreme Court
• Parties: H. RIKER TURNURE, complainant-respondent, v. JULIA TURNURE, individually and as executrix, defendant-appellant

104 A. 293

TURNURE

v. TURNURE.

Court of Errors and Appeals of New Jersey.

June 17, 1918.

(Syllabus by the Court )

Kalisch, Black, and Gardner, JJ., dissenting.

Appeal from Court of Chancery.

Suit toy H. Riker Turnure against Julia Turnure, individually and as executrix of the will of Mary J. Turnure, deceased.From a decree for complainant advised by the advisory" master, defendant appeals.Reversed, and bill dismissed.

James S. Erwin, M. T. Rosenberg, and James F. Fielder, all of Jersey City, for appellant.David D. Ackerman, of Closter, for appellee.

BERGEN, J.The complainant filed this bill to compel Julia Turnure, Charles P. Buckley, and William W. Buckley, as executors of the will of Mary J. Turnure, and Julia Turnure individually, to execute a trust contained in the will of Mary J. Turnure.The testatrix devised, among other lands and personal estate, two parcels of land, sufficiently described for the purposes of this suit as the "Closter farm" and "Tenafly residence," to her executors, in trust to permit her son, the complainant, during his life, or so long as he chose to do so, to occupy the same, or, if he ceased to reside there, then to let the property and pay the rent to him during life, and thereafter to convey it to his descendants, or in default to Julia, or her heirs, if she be not living.The will further provided that if her son should live to be 40 years of age, "and at that time shall not be embarrassed with debt, and competent to prudently manage his own affairs, of which my executors or the survivors of them shall be the sole judges," then they were authorized to convey to the son these lands and other property, and the trust should be terminated.Julia Turnure was named as executrix, and Charles P. Buckley and William W. Buckley to succeed her as executors after her death.She proved the will, qualified as executrix, and is still alive; so that neither of the other nominees have been required or authorized to qualify.

The will further empowers the executors to sell the real estate during the lifetime of her son, or during the minority of any of his descendants, and to invest the proceeds of such sale, which are to be held under the same trust as the land, with the proviso that no sale thereof shall be made while the son resides on the farm without his written consent.The son, claiming to have attained the age of 40 years, not being embarrassed with debt, and competent to prudently manage his own affairs, applied to the executrix and trustee to convey to him the land in controversy, which she refused to do, and thereupon this bill was filed to compel the conveyance, and the advisory master, to whom the case was referred by the Chancellor for his advice, found that the defendant, in refusing to execute the deed to her brother, exercised a discretion confided in her, for selfish and improper motives and mala fide, and advised a decree that she make the conveyance, from which she has appealed.

The latest deliverance by this court on the legal aspect of the right of a court of equity to compel a trustee to exercise a discretion favorable to the cestui que trust, is to be found in O'Gorman v. Crowley, 81 N. J. Eq. 520, 86 Atl. 442, where the execution of the trust was authorized whenever, in the opinion of the executrix, the mental and physical condition of the legatee was such that he was competent to attend to his affairs, without the additional words, as in this case, "of which my executors or the survivors of them shall be the sole judges."In that casethis court said:

"Whether the son's mental and physical condition should improve to the extent indicated was a matter which required an exercise of judgment on the part of some one.The testator, as he had a right to do, selected the executors named in his will as the persons who should exercise that judgment.Their determination of that question was final if the judgment exercised by them was a sound and honest one."

Therefore in the case under consideration the only question remaining is whether the advisory master properly determined the facts to which this rule of law should be applied.

At the time of the mother's death the defendant was living with her brother on the farm, and within a few months thereafter he married and brought his wife Ida Turnure, to the farm, and shortly thereafter the defendant left her brother's residence and since that time has resided elsewhere.The executrix settled her account in the orphans' court as executrix and also filed an intermediate account of the rent from the Tenafly house and of other property held in trust, and no...