In re Estate of Journey

Wolcott, Chancellor. Hoses Journey was, in his lifetime, and at the time of his death, seized in his demesne as of fee of and in a certain farm or tract of land known as Oak Hill, situated in Christiana Hundred, Hew Castle County, and State of Delaware; and that while so thereof seized, he duly made and published his last will and testament; by item 2 of which, he devised to his wife, Margaret Journey, said farm or tract of land during the term of her natural life; and at her death directed the same to be sold and the proceeds thereof to be equally divided among his children, share and share alike. In said will he nominated and appointed Victor du Pont, Esq., to be the executor thereof. That the said testator afterward, to-wit, in the month of March, A. D. 1879, departed this life and left to surr vive him his widow, Margaret Journey, and six children, namely: John Journey, Henry Journey, George Journey, Moses Journey, William Journey and Sarah Ann Munday. That the above-named William Journey, on or about ' the 26th day of October, A. D. 1879, departed this life, leaving to survive him three children, namely: Emma Journey, William Journey and Margaret Journey, now the wife of Samuel Chambers. ■ All of said children being now over twenty-one years of age. That the above-named Moses Journey, the younger, on or about the 9th day of July, A. D. 1887, departed this life, leaving to survive him five children, namely: Mary Journey, now the wife of James H. Massey, and over the age of twenty-one years; and William Journey, — 11 — Margaret Journey, Joseph Journey and Edward Journey, all of whom are infants, and represented in this proceeding by guardians. That from and after the death of the said testator, his said widow, the said Margaret Journey, held said farm or tract of land under said devise as tenant for life until her death, which occurred about the 14th day of October, A. D. 1890. That on the 19th day of October, A. D. 1891, upon the petition of all the parties in interest, it was ordered by the Chancellor that the said lands and premises be sold at public vendue, and that the proceeds arising from the sale thereof, after deducting the necessary expenses, be equally divided among the children of .said testator pursuant to said last will and testament; and to that end Benjamin Nields, Esq., was appointed trustee, to make said sale as in said order directed. It was further ordered by the Chancellor that the ■said trustee should enter upon, hold and manage said farm or tract of land, collect the rents, issues and profits thereof, from the time of the death of the said Margaret Journey, until such time as the sale of said lands and premises should be made and confirmed, and should ■duly account for the same. That the return of the proceedings of said trustee under said order should be made .at the next term of the Court of Chancery sitting in New Castle County. That on the 29th day of March, A. D. 1892, the said trustee made return to this court that he did on the 21st day of November, A. D. 1891, •sell the said lands and premises to James Brown for the .sum of $6,000, he being the highest and best bidder — 12 — therefor, which said return and the sale therein set forth were proved and confirmed; and the purchase money, to-wit, the sum of $6,000,' having been paid to the said trustee, he was ordered by the Chancellor to execute and deliver to the purchaser of the said premises, a, deed, conveying to the said James Brown all the estate and interest of tire said Moses Journey the elder, at the time of his death, to and in the premises so sold. It was further ordered by the Chancellor that the-balance of the purchase money, after deducting the cost and expenses of sale, to-wit, the sum of $5,789.98, be-deposited by the said trustee in the Farmers’ Bank at. "Wilmington, to the order of this court, there to remain, subject to the further order of the Chancellor. That on the 25th day of March, A. D. 1891, the said John Journey, one of the children of the said testator, entered upon the said lands and premises and occupied and used the same until the 25th day of March,. A. D. 1892. It is contended by the other parties in interest, that, he, the said John Journey, entered into the possession of' said lands and premises under an agreement between himself and them, made with the said Henry Journey and George Journey in their behalf, whereby he, the said John Journey, was to pay an annual rent of $250 forth© use and occupation of said lands and premises for the-year expiring on the 25th day of March, A. D. 1892. It is admitted by the said John Journey that he has. not paid the said trustee the said rent, and he denies-that he is liable to pay any rent. He further claims that the money which he expended while on said farm — 13 — and the work which he performed in the making and erecting of permanent improvements .thereon, should he deducted from the said amount on deposit in the Farmers’ Bank at Wilmington to the credit of this court, and the balance thereof distributed among the parties entitled under the will. The first question arising under the will of the said testator is, what interest do the children of the deceased children of the testator take in the fund to be distributed? It is a well-settled rule in equity, that land, directed to be converted into money, or money into' land, will be considered as that species of property into which it is directed to be converted. It is equally well settled, that the beneficiaries under a will in which their interests arise from money or land ordered to be converted into one or the other, take as legatees or devisees according to the nature or quality of the property in its converted state or condition. Let us apply these equitable principles to the case in hand. The late Moses Journey, deceased, by item 2 of his last will and testament, after the death of his widow, ordered his farm or tract of land known as Oak Hill to be sold, and the proceeds thereof equally divided among his children, share and share alike. The only interest which they had under said will was in the proceeds of the sale made in pursuance of the authority contained in said item of said will. Therefore, the share or interest of each of his children, living at the time of his death, in the fund to be produced by the sale of the farm was legally a pecuniary legacy. Was it vested or contin — 14 — gent? Clearly it was not contingent, for the right to it vested immediately upon the death of the testator, since the conversion of the land into money in equity was considered complete at the moment of his decease. The title of each legatee to his or her share of tire fund to be created by the sale of the land, was absolutely free from any element of uncertainty. It was vested in interest, but not in possession. It was a present gift, the time for the enjoyment of which was deferred until the death of the tenant for life. The intervening life estate in the land, only operated as a postponement of the time for the payment of the legacy. The uncertainty or contingency was, therefore, annexed to the period for payment only, and not to the corpus of the gift. The children, therefore, of each of the deceased children of the testator are entitled by right of representation to the share of said fund to which their parent would be entitled if now living. Another question arises upon the facts testified to at the hearing of this case in regard to the liability of Moses Journey to pay $250 for the use and occupation of said farm for the year commencing March 25th, A. D. 1891, and ending March 25th, A. D. 1892. I am of the opinion that the legal estate and title in and to said farm and' tract of land, between the death of the testator and the actual conversion of the same, descended to the children of the said Moses Journey the elder. The authority to make a sale of said lands and premises was a mere naked power which carried with it no estate or title, to the trustee or the person having in charge the execution of the will. This view — 15 — is clearly sustained by the English authorities, and also by the case of Lockwood’s Administrator c. t. a. et al. v. Stradley et al., 1 Del. Ch. 298; King v. Ferguson et al., 2 Nott & McCord, 398; Warnford v. Thompson, 3 Ves. Jr. 515; 2 Sugden on Powers, 170, 171; Yates v. Crompton, 2 P. Wms. 308; Hilton v. Kenworthy, 3 East, 557; Fletcher v. Ashburner, 1 Brown C. C. 497; Cain v. Gott, 24 Wend. 660. Admitting the rule to be as enunciated in the cases referred to, it is very apparent that the heirs-at-law of the testator had the right to contract with each other in respect to the lands and premises in question, and without any contract John Journey was liable to the other heirs or coparceners upon an action on the case for use and occupation, under section 2, chapter 86, page 527, Revised Code. Laying aside all the testimony in regard to the agreement between John Journey and Henry Journey and George Journey, he, John Journey, was and is liable to his co-tenants for the rental value of the farm for the year before referred to. It. having been proven that the rental value of the farm for the year A. D. 1890', was fixed at $250 I am justified in the conclusion that that sum was a fair rent for the succeeding year; and that John Journey is liable to his co-tenants for the same. The permanent improvement, which were made and erected on the farm, I am of the opinion should be a credit on the rent account. In view of the meagre testimony on that point, I feel constrained to fix the value of such permanent improvements, according to the testimony of John Journey himself and the witnesses which he produced in behalf of his claim.