Horning v. Wiederspalen

The Chancellor. Benedict Wiederspalen, by his will dated August 6th, 1874, gave to his son Eranz, the defendant, his house and lot, Ho. 174 Prince street, in the city of Newark, on condition that he pay a legacy of $500 to the testator’s daughter, the complainant, and a legacy of $1,000 to his daughter Elizabeth; the legacy to the complainant to be paid in two years from the time of the testator’s • death. The will further declares as follows : „ ■ “ It is my will, and I further order that in case my said son, Franz, shall die without leaving any children, then his property, which I hereby will to him, shall be divided among my remaining children, or their heirs.” The defendant, as alleged in the bill, and admitted by the answer, immediately after the death of the testator, entered into possession of the above-mentioned house and lot, and ever since that time has kept possession thereof. He has accepted the devise, and is bound to comply with the condition. He is, therefore, liable to pay the legacies to the complainant and her sister. They are also charged on the land. [388] His estate in the devised, premises is a fee, liable to be defeated by a failure of issue at his death. The complainant is entitled to the relief specifically prayed by the bill, a decree that the defendant pay her legacy and interest thereon from the time when it became payable, and the costs of this suit; and in case of his failure to do so, that the house and lot be sold to raise and pay the legacy, interest and costs. The property will, however, be sold subject to the legacy to Elizabeth, unless the bill be amended by adding Elizabeth as a defendant, in which case it will be sold to raise and pay the amount due on both legacies; and if enough money should not be raised by the sale to pay both, the proceeds of the sale will be applied to the payment of the amount due each of the legatees proportionably.