Jacobus' v. Jacobus

The Chancellor. The bill is filed by the executor of a will, for directions in discharge of his duty as executor under the directions in the will. The testator, Anthony A. Jacobus, died in February, 1849. He left a will, executed nearly a year before his death, which was admitted to probate, and of which the complainant is the executor. By it he gave all the residue of his estate, after certain specific dispositions, to his grandchildren, Anthony Jacobus and Peter Jacobus, aud such other children as his son, Henry V. B. jacobus, might after-wards have, in fee simple, to be divided among them, when the youngest should arrive at the age of twenty-one. This was made subject to the provision that his son Henry V. B. Jacobus should be furnished, out of the rents and income, with a good and sufficient support during his life. This was directed to be paid to him by the executors of the will, and to be liberally furnished in such time and manner as his son might suggest, at any and at all times. He also directed a good and sufficient support to be furnished to the wife of his son, during her life. He also charged the estate with the comfortable support and education of his grandchildren, under the direction of his son Henry; and directed that if either of his grandchildren should desire, or if his son Henry should think proper to educate one or more of his children for one of the learned professions, that ample means should be furnished for that purpose. Henry V. B. Jacobus has left his wife and family, who continued to reside on the homestead of the testator in Essex county, and has been, and still is, living apart from them, in Trenton. The separation and estrangement, whatever may be its cause, seems permanent. Peter B. Jacobus, one of the sons of Henry, who is of age, remained with his [52] mother and took the management of the farm. Mary Ann Jacobus, the wife of Henry, remained at the homestead, kept it up as a home for herself and children, and took charge of and supported those who are under age; their father has paid no attention to their support or education, and does not bestow any care or assume any responsibility concerning them, or give any directions to the complainant about these matters. The education of these minors 'is, in the mean time, being neglected. The complainant applies to this court to settle the respective rights of the son, his wife, and his minor children, and his own duty as to each. The testator, by his will, has absolutely given the residue of all his property to these grandchildren. For the purpose before us it must be considered as vested in them, although in' certain contingencies the estate may open or be divested. This estate is not to be divided or come to the possession of these grandchildren, until the youngest shall be twenty-one years of age, and until then and afterwards, it is burthened with the support of their father and mother, during their lives respectively, and with the maintenance and education of such of these grandchildren as may be minors. The support to Henry is expressly directed to be furnished by the executor; that to the grandchildren and the wife of Henry is also to be furnished by him, by plain implication. The support directed to be furnished to the grandchildren, as well as their education, is directed to be furnished under the direction of Henry, but the direction to furnish is positive, as well as the direction to provide a liberal education for any minor grandchild who should desire it. I am of opinion also that all are to be furnished out of the income of the estate. The amount to be furnished to each is, to a large extent, in the judgment and discretion of the executor; nor do I think, that he is bound to contribute the whole income, if less than the whole will answer the purpose for which it is to be distributed. The condition of the family is changed from what it was [53] at the making of this will, and from what the testator could have contemplated. The throe objects of his bounty, his son, his son’s wife, and his grandchildren, were one family, under the control and management of their natural head, who was by law, and by natural duty, bound to provide for and support the whole. But he has deserted his family, and neglects to perform these duties, so far as appears, without any cause or excuse. Under these changed circumstances, the direction to furnish the son with a liberal support, must have a far different interpretation in apportioning to each of the objects o,f the testator’s bounty the proper relative share, from that which would be given to it if the son was performing his duty of taking care of his family and educating his children. The discretion confided to him must be left with and exercised by the executor; but it is the duty of the court to decide for whom the executor is bound to provide, and whom he is authorized to aid, and the circumstances under which he may render such aid; and to intimate certain limits within which the exercise of his discretion should be exercised. First, with regard to testator’s son. Although he has deserted his family, and may have done it wrongfully, he is still entitled to a good and sufficient support; but under existing circumstances, that means a very different proportion of the income from that to be furnished if he were supporting his wife and family. Next, the infant grandchildren are entitled to a comfortable support and proper education out of the income, and any one of them who desires it is entitled to a liberal education. This is the absolute right of these grandchildren; if their father is willing to direct it, it must be done under his direction ; but if he refuses to perform the duty of directing, these infants are not, therefore, to lose their support and education, but the executor must provide for it upon consultation with their mother, so long as she retains her position as head of the family, and provides a home for, and takes care of her children. [54] Mary Ann Jacobus, the wife of the son, is also clearly entitled to a good and sufficient support; and these words, good and sufficient, must be construed to mean such as is proper for a mother and head of a family, with the fortune and rank of her husband and his'children. As to the proportion, the court can give no directions, except subject to the judgment of the executor and the discretion confided to him by the will. If Mrs. Jacobus chooses to reside on the farm, and provide a home for her children, at which the minor children may be supported, and the children of full age may resort as the home of the family, it seems to me that it would be a proper exercise of the discretion of the executor to allow her the occupation of the farm, she keeping it in repair, and one third of the net income'of the estate. I think that one third of the net income would be sufficient to allow to Henry Y. B. Jacobus, so long as he remains from his family, and does not contribute to their support. One sixth of the income might be appropriated for the support of the minor children, and expended for them under the direction of their mother; and one sixth for the liberal education of any that desire it; these two sixth parts should be expended under the direction of their father, if he will, in good faith, undertake the control and direction of these expenditures committed to him by the will. With that control the court has no right to interfere, unless, perhaps, in case he should be living in such way as to render it improper for him to direct these matters. But, after all, the amount to be expended for each of these purposes must be mainly left to the discretion of the executor; and the intimation contained in this opinion as to the relative appropriation for each object cannot be inserted in the decree. It is a proper case for an executor to ask the direction of the court. The difficulty grew from the want of definite directions in the will, and no factions or unnecessary opposition has been made, or costs occasioned by any defendant. I shall, therefore, direct the costs and proper counsel fees for both parties to be paid out of the estate.