Chambers v. Sharp

Grey, Y. C. There is no gift by the testatrix in this will of the fee in the-lands whereof she died seized. The direction to the executors is-to hold real estate “during the lives” of testatrix’s brother and sister and the life of the survivor of them, and to pay the net profits thereof to them and the survivor- of them, and, upon the-death of the survivor, to sell at public sale, &c. The obvious purpose of the testatrix, by this devise, is not to-pass title to the executors by a fee-simple estate, but only a control during the lives of the two named beneficiaries, at most but a life estate. In addition to this devise to the executors of an estate during the lives of the testatrix’s brother and sister, there is a gift of' a power of-sale, but this does not enlarge the interest previously expressly limited to a life estate into a fee. Benz v. Fabian, 9 Dick. Ch. Rep. 618, and cases there cited. Under these circumstances the legal title to the fee of the lands o-f the testatrix, Mrs. Eggman, descended, upon her death, to her heirs-at-law, subject to the exercise of the power of sale created by her will, and to her disposition of the proceeds of that sale. Gest v. Flock, 1 Gr. Ch. 108; Romaine v. Hendrickson, 9 C. E. Gr. 237. By the same paragrajih in which the testatrix directs her real estate to be held during the lives of her brother and sister she directs the executors,-upon the death of the survivor of them,, “to sell the same at public sale.” This express order to sell lands will, in the consideration of this court, be held to operate-as a conversion, so that the lands will be deemed to have been converted into money from the time of her death. Cook v. Cook, 5 C. E. Gr. 316; Dutlon v. Pugh, 18 Stew. Eq. 429. The provisions of this will do not call for the application of the principle applied in Crane v. Bolles, 4 Dick. Ch. Rep. 381, by which a gift of a fee will be implied where the testator directs acts to be done by the executor which belong to the owner of the-freehold, and which require a completé dominion over the real estate. In this case Mrs. Eggman has expressly declared the quantity of interest which she wished her executors to take, namely, to hold during the joint lives of her brother and sister257 and the life of the survivor of them. What further authority they were to exercise is also definitely expressed, and is given by way of a power and not of an estate. Where the purpose of the testatrix is so clearly expressed, there is no occasion for raising an estate by implication. It is the duty of the executors to sell the lands under the power of sale created by the will,' and not under any devise of an estate in fee to them, in trust for the purposes of the will. The main point in dispute is whether, under the will, Emily Meriam Sharp took an estate which vested upon the death of the testatrix, or a contingent estate, capable of vesting only at the death of the survivor of the testatrix’s brother and sister. If the former, then, by the gift to him in Emily’s will, her husband, Joseph K. Sharp, is now entitled to her share. If the latter, then Mrs. Eggman must be held to have died intestate of Emily’s share, for the latter died before the vesting period, and her share is a residuary interest, which does not survive to the others in that class. Hutchinson v. Exton, 8 Dick. Ch. Rep. 688, is cited to sustain the view that the gift could only vest by Mrs. Sharp’s outliving the survivor of the testatrix’s brother and sister. But in that case the words of gift were “whatever * * * may remain at the death of my said wife * * * shall be divided between by six daughters.” It will be noticed that the words directing division at the death of the life tenant are words not of present, but of future gift, so that the testator did not give anything until the time of division arrived. Eor the beneficiary who died before that time nothing was provided. But in the present case Mrs. Eggman provides for her brother and sister for their lives, and then says, “and upon the death of' the survivor of my said brother and sister, and after the sale-of my real estate as hereinbefore directed, I do hereby give and' bequeath,” &c., to Emily Meriam Sage, &c. She gives hereby, that is, by her presently speaking and operating gift, to be enjoyed upon the death of the brother and sister and the sale of' the lands. The whole frame of' her .will shows .that she had1, postponed the enjoyment of these residuary gifts to let in the' life tenants, and that she directed the sale of her lands so that [258] her whole estate should,, by her executors, be conveniently divided in money. The ease lies within that class in which the absolute property in a fund is bequeathed in fractional interests, in succession, at periods which must arrive. The interest of the first and subsequent takers in such cases vests at the same time. See the English cases collated in 1 Bop. Leg. *584. The same doctrine has been declared and accepted in this court, when the phrasing of the will indicates a present gift, to be enjoyed upon the happening of some future event, which must certainly take place. Thomas’ Executors v. Anderson’s Administrator, 6 C. E. Gr. 22; Beatty’s Administrator v. Montgomery’s Executors, 6 C. E. Gr. 326. The same rule has been applied in the law courts. Green v. Howell, 1 Vr. 326. This case was unanimously affirmed on error (2 Vr. 574),'where it was held to be immaterial whether ihe gift was through the medium of a trust or not. The result is that the legacy to Emily Meriam Sage and others -vested at the death of Mrs. Eggman, the testatrix. Upon Emily’s death it passed, by her will, to her husband, the defendant Joseph K. Sharp, who is presently entitled to receive it from the executors of Mrs. Eggman. I will advise a decree accordingly.