Nye v. Koehne

Per Curiam. (1) The court is of opinion that the gift to Anna H. Montgomery, in the will of Rowland R. Hazard, of a half-part of the proceeds of real estate ordered to be sold by his executor, was an absolute gift. The respondents who demur to the bill claim that, as it was left in trust for her, she took *120 only a life-estate. The money was to be held in trust “for her sole use,” without a gift over. The presumption is that the testator did not mean to leave this portion as intestate property. The respondents argue that if this is held to be an absolute gift, she could have defeated the trust. That would have depended upon circumstances, such as her coverture, improvidence, mental incapacity, etc. Nothing appears in the will or the circumstances of the gift to show that it was to be less than absolute, but the contrary intent is evident. ' This being so, the respondents, as heirs of Rowland R. Hazard, are nominal parties simply, holding a bare legal title, subject to be defeated by sale, but having no further interest in the estate. The complainants are all the beneficiaries to whom the proceeds of the estate are payable if a sale should be made. They ask for a conveyance of the legal title to them as equitable owners in fee. The respondents contend that a sale must be made, according to the terms of the will. To what purpose would this be ? The complainants, to whom all the proceeds would go, could buy it at any price and then receive a deed. The same result is reached in a simpler way by granting the prayer of the bill. It is their property in equity. The respondents hold the legal title practically as trustees for the complainants, and we see no reason why they should not convey it, since they all desire it to he done. Samuel R. Honey, for complainants. Charles H. Koehne, Jr., pro se ipso. Robert W. Burbank, for certain respondents. Demurrer overruled.