Dutch Church at Freehold v. Smock

The Chancellor. To the report of the master, on the several matters referred to him, exceptions have been taken by the trustees of Micah Clark ; and these exceptions are now to be disposed of. And first, as to the balance of the legacy due to Jane Vanderveer. It is alleged by the exceptants in their cross-bill, that this legacy had been fully paid by G. H. Smock ; and the testimony of George Clark is referred to, to prove it. George Clark is the husband of Micah Clark, the cestui que trust, whose rights are involved in this controversy; and he has acted as the efficient agent of the trustees in the management of the whole concern. Without examining the question of his competency, I think the evidence as it stands does not establish the fact of the payment. Admitting it to be true, as the witness states, that Garret H. Smock told him he had an account against Joseph Vanderveer sufficient to meet the balance due on the legacy of his wife, and that Smock further told him there was nothing due to Vanderveer on the legacy, it is but the allegation of the party whose interest it may have [153] been at the time to represent the legacy as paid. It is not asserted either by the legatee or her husband. There is no evidence to show any acknowledgment by them, that the balance of the legacy was satisfied. Not only so, but they both expressly deny it in their answer to the cross-bill. I see no reason to disturb this part of the master’s report.1 2d. As to the legacy to the widow Sarah Smock, now deceased. The master reports tire amount on the 12th January, 1830, to bó, principal six hundred dollars, and interest four hundred and fifty-two dollars and ninety-four cents—computing interest from the 1st of April, 1819. Whether this is an absolute legacy, or whether the principal ia after the death of the legatee to revert to the estate ; and also whether, upon the evidence, the interest is to be considered as paid, were matter^ supposed not to be submitted to the master, and on w7hich, consequently, he made no report. They are now brought before the court for adjudication. With regard to the legacy, the Words óf the testator are, “ I also give to my wife the sum of six hundred dollars, to be at her disposal during her life.” It appears that she made no disposition of it during her life, and that it remained in the hands of the executors. I am of opinion, nevertheless, that the widow took in it an absolute and vested interest, and not merely a life estate with the power of disposition during her life. In the case of Robinson v. Dusgale, 2 Vernon, 181, J. S. devised his lands tó A. for life ; remainder to B. in fee, he paying £400, whereof £200 to be at the disposal of his wife, in and by her last will and testament, to whom she shall' see fit to give the same. The wife died intestate, making of course no disposition by will. The plaintiff took out letters of administration, and brought his bill to have the £200. And it was insisted for the defendant that the property was not absolutely vested in the wife, but that she had only a power to dispose of it by will, if she thought fit; and that not having done so, the defendant was not chargeable with the payment of it. But the court took it, that the whole interest and property of the £200 vested in the wife, and that she had power to dispose of it as she thought proper; and therefore decreed it for the administrator. This case is ap [154] proved, and the same principle adopted by Sir Thomas Sewell, the master of the rolls, in Maskelyne v. Maskelyne, Amb. 750. So in Hixon v. Oliver, 13 Ves. 108. The testator gave to his wife, Faifchy Oliver, £60 a year as her dowry, to be paid to her quarterly by his executor from the day of his death ; and the sum of £300 to be disposed as she thought proper, to be paid after her death; and also his leasehold dwelling-house and furniture during her natural life. The testator died soon after the date of the Will, and his widow survived him about a month and died intestate, without having disposed of the legacy of £300. Her administrator filed a bill praying payment of the legacy. The court held the legacy to be vested and absolute, and that the administrator was entitled to recover, upon the authority of the cases already cited. Ld.Eldon thought in that case that the widow cóüld have disposed of the legacy as she thought proper, not being confined to a disposition by will. See also Ross v. Ross, 1 Jac. & Walk. 154. The same principle has been adopted in this country. In Jackson v. Robins, 16 Johns. Rep. 588, Chancellor Kent, in the court of errors of New-York, says, we may lay it down as atl' incontrovertible rule, that where an estate is given to a person' generally or indefinitely, with a power of disposition, it carries á fee; and cites the additional authorities of Reid v. Shergold, 10 Ves. 370 ; Goodtitle v. Otway, 2 Wils. 6. “ The only exception to this rule is, where the testator gives to the first taker an; estate for life only, by certain and express words, and annexes to it a power of disposal. In that particular and special case, the devisee for life will not take an estate in fee, notwithstanding the distinct and naked gift of a power of disposition of the reversion. This distinction is carefully marked and settled in the cases.” The same conclusion is drawn and' clearly stated in 1 Roper on Legacies, 430. In the'present case there was a power of disposal during life,This power extended not only to a part, but to the whole of the legacy; and by consequence, the power was absolute. The omission to dispose of it in her life-time, does not alter the nature of the estate ; nor does the fact of its not having been paid to-the widow, or that it must now be raised out of the real estate, in any degree vary the case. The purchasers had full notice of [155] the claim, and it was their duty to inform themselves of its nature and extent. , , , As to the interest on this legacy, it is admitted that the widow was entitled to it, and that now since her death her personal representatives are entitled to claim it, unless it has been paid or in some way settled between the parties. Tlie master who was directed to take an account of the amount due the legatees, states that there is due to the executors of Sarah Smock, widow, ten hundred and fifty-two dollars and nine-four cents. This includes interest from April, 1819. But in the schedule to the report, it .appears that the master supposes it is not submitted to him whether, upon the evidence, tlie interest is to be considered as paid; and he has, of course, expressed no opinion on that point Although this is a proper matter for investigation before a master, I feel unwilling to direct a second reference, and thereby subject the complainants to further delay. But if tlie order was understood by the parties as it was by the master, it may be that they or one of them may wish to produce evidence to ascertain the facts connected with this charge. The opportunity should be given if desired; and consequently, if either party has further evidence to offer, and washes an opportunity to produce it, the reference will be ordered. 3d. The remaining exception is to the allowance of four hundred and six dollars and one cent to the executors, for monies paid and advanced by them over and above the proceeds of the personal estate. By the accounts of the executors, as settled in the orphans court upon a report of auditors, there appeared to be a balance due them in 1827 of three hundred and six dollars and seventy cents. This, together with the costs of tlie settlement before the auditors and the orphan’s court, and the interest up to the time of the report, is put down at four hundred and six dollars and one cent. The master says there is no evidence to satisfy him that this amount has been received by the executors out of the profits of the estate in their hands, and he adds it to the amount to be paid out of the mortgaged premises, I am not satisfied with this disposition of it; and yet I am not prepared to say it is altogether incorrect. If the personal estate was insufficient to satisfy the legacies and debts, and the expenses [156] of settling the estate, the surplus was to be charged on these premises ; and under ordinary circumstances there would be no , , „ . . , „ ⅛ . difficulty in making the allowance now claimed. Hut m this case, Garret H. Smock, one of the executors wbo claims this allow-anee, was at the time these monies were paid out, the owner of these very lands charged with the deficiency. If he had been the sole executor, and had while owner of the property paid the deficiency which it was liable to pay, it would have been considered paid in easement of the land, and the property would have been discharged. If the lien be paid off by the owner of the land, it is as though the money had been raised by sale. The difficulty consists in the fact that there are three executors, and that the final account rendered by them is a joint and not a separate account. Hence it is impossible to say whether this money has been advanced by all the executors jointly, or only by some or one of them. On looking at the vouchers, however, it seems that a very large portion of the payments has been made by Garret; and from all that appears, it is by no means improbable that all the balance claimed, would, if allowed, be put into his pocket. This would be unjust as against the purchasers. The notice given at the sale does not affect the question. If the lien was satisfied and paid, the notice could not revive it. It may be, however, that the whole or a part of this money belongs of right to the other executors; that the assets received by them have been less than their disbursements and allowances for services: and if so, the allowance ought to be made them. These are matters which the court cannot now ascertain, nor can it be done without referring it to a master to take and state the accounts of the executors separately, taking the account settled in the orphan’s court as the basis. The report should state the amount of assets received, and the amount of disbursements made, by each separately, together with the proportion of commissions proper to be allowed each one, on the principles applicable to such cases. I shall accordingly refer it to the master to take the necessary account, with leave to examine the executors upon oath touching the same; reserving all further directions until tire coming in of the report.