Tuttle v. Woolworth

• Decision Date: 13 November 1901
• Citation: 50 A. 445,62 N.J.E. 532
• Parties: TUTTLE v. WOOLWORTH et al.
• Court: New Jersey Court of Chancery

50 A. 445

62 N.J.E. 532

TUTTLE

v. WOOLWORTH et al.

Court of Chancery of New Jersey.

Nov. 13, 1901.

Bill by George P. Tuttle, executor, etc., against Caroline A. Woolworth and others for construction of a will. Decree for complainant.

Joseph N. Tuttle, for complainant.

H. H. Dawson and Mr. Dorsett, for defendants Woolworth and Dorsett. C. G. Titsworth, for defendants Mary T. Taylor and others.

EMERY, V. C. Under the will of Charles S. Macknct, who died in 1872, his executors held in trust for testator's widow during her life a house and lot No. 38 East Kinney street, Newark, and certain specified bonds and stoeks, amounting in par value to about $10,000. The widow died on February 27, 1900, and questions are now raised as to the parties entitled to this real and personal estate after her death. As to the real estate, the third item of the will devises and bequeaths this house and lot to his executors, in trust substantially as follows: First, for the use of his wife during her natural life or her widowhood, and, after his wife's decease or marriage, to his daughter Hattie for life, and at her death to convey to her children, or, if desirable for their interest, to sell and divide the proceeds of sale. This item of the will then directs: "But if the said Hattie shall die without issue her surviving, then I direct my executors to sell the said house and lot, and distribute the proceeds thereof among my heirs, according to the laws of the state of New Jersey." The daughter Hattie died unmarried, and without issue, in 1887, and previous to the death of her mother, having by her will devised all her estate derived under her father's will to her mother. The mother, by her will, devised and bequeathed her residuary estate to her two nieces, the defendants Mrs. Taylor and Mrs. Dusenberry.

The heirs at law of the testator at the time of his death were his son Theodore and his daughters Caroline and Hattie. Caroline (now Mrs. Woolworth) is one of the defendants, but Theodore died during the lifetime of his mother, and his daughter Eliza (now Mrs. Dorsett), one of the defendants, is the sole survivor of his stock. Mrs. Woolworth and Mrs. Dorsett claim that the "heirs" of the testator who are to take the proceeds of the sale of the lands directed to be made at the widow's death are the heirs of the testator who were living at the time of the widow's death, and that, as the two heirs living at this period, they are entitled to the whole proceeds of sale. The administrator cum testamento annexo of the widow, on behalf of her residuary devisees and legatees, claims, on the other hand, that the heirs of the testator are to be determined at the death of the testator, and that Hattie was entitled under the will to one-third, as one of these heirs, and her assigns are entitled to one-third of the proceeds of the sale when made. As the surviving executor has not yet sold the house and lot, it would be premature to decide upon the disposition of the proceeds of sale, and the executor is not entitled to the direction of the court upon this disposition until the proceeds of sale are on hand ready to distribute, and the persons then entitled to or claiming the fund are in court. The personal estate involved is ready for distribution, and as to this the executor is entitled to directions. As to the personal estate the question arises under the fifth item of the will, in which the primary bequests and the limitation over are made in a somewhat different form. This fifth item bequeaths to the executors certain bonds and stocks specified (about $10,000 par value), in trust—First, to collect the interests, etc., and therefrom pay expenses of maintenance, taxes, etc., of the house, of which the use was given to his wife and daughter Hattie (being the house mentioned in the third item); and, second, to pay the balance of the interest, etc., to his wife during her natural life, "and after her death to set off the said bonds and stocks to my daughter Hattie, or her heirs. If the said Hattie shall die without Issue her surviving, or children of such issue, then said bonds and stocks shall revert to my estate, and be distributed among my heirs, in the manner provided by the laws of New Jersey respecting intestate estates." As to these stocks and bonds, the now living heirs of the testator, Mrs. Woolworth and Mrs. Dorsett, claim the entire amount upon the same grounds as their claim to the entire proceeds of sale under the third item is based. It is claimed, on the other hand, by the assignees of Hattie's interest, that the daughter Hattie, under this bequest, upon the death of the testator became entitled to an absolute vested estate in the fund, subject only to the life interest of her mother, and that the clause directing payment over on her death without issue surviving referred only to her death in the lifetime of the testator. Having survived the testator, it is claimed that she was entitled to the absolute estate, and that the bequest to testator's heirs, being substitutionary only, cannot take effect It Is, moreover, insisted that this construction of the character of the bequest was settled by a decree made on a bill filed by the executors during Hattie's lifetime, and to which she was a party. Macknet's Ex'rs v. Macknet (1873) 24 N. J. Eq. 277 (Runyon, Ch.). In this case the question was as to the effect of the widow's refusal to accept the provisions of the will, in lieu of dower on the different bequests and devises of the will. But the question now raised as to the nature and effect of the bequest made on the death of Hattie without issue, during the lifetime of the mother, was not directly involved or expressly considered in the case; neither could it have been conclusively determined in advance, and in the absence of the parties or claimants necessary to determine the question. Ashhurst v. Eippincott (1898) 56 N. J. Eq. 840, 842, 42 Atl. 1017. Nor, on examining the decree made in reference to her interest in the bonds and stocks, does it appear to determine the point now Involved. By the decree the executors were not directed to pay over the bonds and stocks to Hattie, as if, on the failure of the wife's interest by her refusal to accept the legacy, the principal had become payable to Hattie at once, but they were directed to hold and accumulate the balance of the income of the fund, after paying expenses on the house, in trust for Hattie, and no express direction was made as to paying her any portion of the principal. The widow, subsequent to this decree, accepted the provisions of the will (Macknet v. Macknet [1878] 29 N. J. Eq. 54), and the executors, having therefore held the fund, as expressly directed by the will, until after the death of the widow, the question as to the distribution of the fund after her death now comes directly before the court All the claimants to the fund have now for the first time their day in court as to its disposition and are entitled to have the question considered as res nova, and not res adjudicata. The claim that Hattie, on surviving the testator, had a vested interest in the fund, indefeasible by her subsequent death without issue, is based on the contention that the direction that, "if the said Hattie shall die without issue her surviving, or children of such issue," referred only to her death in the lifetime of the testator, and not to her death before the period of payment or transfer—the death of her mother. This construction cannot be adopted. The words "die without issue her surviving," taken in the natural and ordinary sense, refer to death at any time without issue surviving, either prior to the testator's death or subsequent Unless there is something in the will which would indicate that death before the testator was intended, the natural scope of the words cannot be restricted to death before that period. In all of the New Jersey cases to which I have been referred by counsel on this point, there have been expressions or provisions indicating that the time of death without issue surviving was restricted either to a death before testator, or some other special time. The leading cases Pennington v. Van Houten's Ex'rs, 8 N. J. Eq. 272, Baldwin v. Taylor, 37 N. J. Eq. 78, affirmed 38 N. J. Eq. 637, are instances where, by reason of the context and the general provisions of the will, the death referred to was so restricted. In the present will, not only are these special features absent, but the other directions of the will in reference to Hattie's interest show...