Weber v. Beales, 240.
| Decision Date | 25 September 1947 |
| Docket Number | No. 240.,240. |
| Citation | 55 A.2d 67 |
| Parties | WEBER et al. v. BEALES et al. |
| Court | New Jersey Supreme Court |
OPINION TEXT STARTS HERE
On appeal from Court of Chancery.
Suit by Bertrond A. Weber, executor of the last will of Isaac B. Beales, deceased, and others against Margaret A. Beales and others for construction of decedent's will as authorizing executor to sell realty, or in the alternative for partition of the realty. From a decree upholding executor's power to sell the realty, named defendant appeals.
Result affirmed and case remitted with direction to revise form of decree to conform with opinion.
Sebastian Gaeta, of Wycoff, for complainants-appellant.
Major & Carlsen, of Hackensack, for defendant-appellant Margaret A. Beales.
Winne & Banta, of Hackensack, for defendants-respondents Frank Parker and Nora Parker.
The complainants-respondents, Bertrond A. Weber, executor of the last will and testament of Isaac B. Beales, deceased, and Ruth M. Brower and Warren A. Brower, her husband, filed their bill of complaint seeking the construction of the last will and testament of Isaac B. Beales, deceased, alleging there existed an implied power of sale in the executor to sell and convey lands and premises hereinafter referred to. There was a second cause of action in the bill of complaint seeking partition of the lands and premises if the Court should construe otherwise.
The Vice-Chancellor based his opinion upon his finding that there was a memorandum made by the testator from which he spelled a valid contract to sell to the defendant-respondent, Frank Parker and that there arose from such special circumstances the power to sell by implication. While we concur in the result, we prefer to rest our opinion upon a different basis, namely that in the construction of the will of the decedent, to give effect to the apparent intention and purpose of the testator, there arises an implied power of sale in the executor to sell and convey the premises hereinafter referred to. In the bill of complaint no mention was made of the action of the decedent with respect to the premises and the prayer for relief was based upon the allegation of an implied power of sale in the executor by means of construction of the will.
In Haggerty v. Lanterman, Ch.1878, 30 N.J.Eq. 37, Chancellor Runyon cited language which is also true here, from the opinion of Chief Justice Shaw in Going v. Emery, 16 Pick., Mass., 107, 26 Am.Dec. 645, as follows:
‘The Will is certainly very inartificially drawn, but this circumstance is never held to affect the validity of a will when the meaning of any particular clause, expounded by a consideration of all other parts of the Will, can be ascertained with reasonable accuracy.’
The decedent died testate on October 14, 1944. His will was duly probated and the executor therein named, Bertrond A. Weber, qualified and letters testamentary were issued to him. The will was an ineptly drawn instrument. By its provisions after certain cash and miscellaneous bequests, provided as follows:
‘My furniture and personal property to be divided equally between my two daughters Ruth M. Brower and Margaret A. Beales, or sold and the proceeds derived divided equally between them.’
‘The property at 356 Harrison Ave. Hasbrouck Hts. N. J. to be sold and the proceeds derived, divided equally between my daughters Ruth M. Brower and Margaret A. Beales.’
The testator left as his next of kin, complainant-respondent, Ruth M. Brower, who is married to Warren A. Brower, complainant-respondent, and Martha A. Beales, single woman, the defendant-appellant. There is no other disposition of this real estate or any other mention made of it in the will.
The executor entered into a written contract for the sale of the property to Frank Parker for the sum of $5000. At the time of the death of the testator the defendants-respondents, Frank Parker and Nora Parker, his wife, occupied the property upon a verbal monthly tenancy at a rental of $50 per month. For six years prior to his death, testator had been living with the said Frank Parker and Nora Parker. Subsequent to the execution of the contract for sale by the executor, the vendee applied for an examination of the title to the premises by a title company and for title insurance. To provide this the title company called for a deed from the Executor but insisted that it be joined in by the two daughters and the husband of Ruth M. Brower and her husband, Warren A. Brower agreed to do so but the defendant-appellant, Martha A. Beales, refused. This action resulted in the filing of the bill of complaint.
In the will before the Court, there is a direction that the real estate shall be sold and the proceeds of the sale divided. The paragraph containing that instruction does not expressly state that this duty was to be performed by the Executor. In 134 A.L.R. page 378, the subject is extensively annotated. There is found the many diversifications of the subject and copious citations and the applicable rule is stated, at page 384, thus:
‘In the absence of an express device, an executor named in a will which either expressly or impliedly directs real property to be...
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