Opinion
10-26-1891
DEICHMAN v. ARNDT.
Charles A. F, forcomplainant. Wm. M. Davis, for defendant
(Syllabus by the Court.)
Action by Deichman against Arndt for the construction of a will.
Charles A. F, forcomplainant.
Wm. M. Davis, for defendant
BIRD, V. C. By the bill in this case the complainant asks the aid of the court in determining the true construction of the last will of Ann Arndt, deceased, and consequently the rights of the legatees and devisees under said will. At the time of her death and of the making of her will she was the owner of a lot of land with a dwelling thereon, in which she resided. Before the making of her will she gave a bond to William M. Davis, the guardian of Harry King Arndt, one of her infant children, conditioned for the payment of $500, with Interest. To secure this bond she gave a mortgage upon said house and lot. By her will she devises this house and lot to her son Harry in the following language: "I give to my son Harry King Arndt, absolutely, to be held in trust, however, by my executor hereinafter named, the dwelling-house and lot wherein I now reside, situate on Main street, in Phillipsburg, N. J., until he arrives at the age of twenty-one (21) years; my executor to rent the same, collect the rent, pay all taxes, insurance, services, and repairs, and the balance remaining to be used for the support and maintenance of my son Harry King Arndt, hereinbefore named." Two questions are presented in the bill for consideration, viz.: Is the devise to be regarded as a payment and discharge of the bond, and is the gift to Harry of the absolute fee? In this case the testatrix in clear language directs that all of her debts be paid as soon as conveniently can be after her decease. She makes disposition of her personal estate, including bank-stock, giving a portion thereof to her daughter, a portion to another son, and a portion to the said Harry. The division of this personal property is not equal, but the extent of inequality is not made apparent. She first gives to her daughter certain household furniture; and, in the second place, to her son Frank certain household furniture; and, in the third place, makes the devise of the house and lot to Harry. She then provides for the protection of her cemetery lot, and gives the three children all of her silver-ware. Immediately after this she directs her executor to sell "the balance of my household effects," and to divide the proceeds thereof between her three children, directing him, however, to hold the share of Harry until he arrives at the age of 21 years. Then she directs her executors to collect the dividends of her 19 shares of bank-stock, and to pay the same towards the support and maintenance of Harry until he arrives at the age of 21 years, at which lastmentioned date he is authorized to sell the said stock and divide the proceeds between her three children. Notwithstanding this last provision, she authorizes her executor to sell all the said shares of bank-stock at such time or times as he shall think fit, and to invest the proceeds, and pay the interest thereof for the support and maintenance of her son Harry until he arrives at the age of 21 years. She then directs that the residue of her estate, "consisting principally of bonds and mortgages and notes, money and stock, should be divided equally between my three children, share and share alike, my executor, however, retaining that portion falling to my son Harry King Arndt until he arrives at the age of twenty-one years." From this it appears that the testatrix was indebted to theguardian of her son in the sum of $500; that she made her said son both devisee and legatee, imposing a condition upon the devise that the executor should receive the rents and profits until the son arrives at the age of 21 years, for his support and maintenance, and a like condition upon the gift of the legacy; and that, as the matter stands, both the devise and the legacy are of uncertain value. Where there is nothing to show a contrary intention upon the part of the testator, and he directs the payment of his debts, the gift of a legacy is never presumed to have been given for the purpose of discharging a debt due from the testator to the legatee. Van Riper v. Van Riper, 2 N. J. Eq. 1, Heisler v. Sharp, 44 N. J. Eq. 167, 14 Atl. Rep. 624; Rusling v. Rusling. 42 N. .1. Eq.5 U4,8 Atl.Rep.534; Chancey's Case, 1 P. Wms. 408, 410, 2 White & T. Lead. Cas. 752, notes, 820; Reynolds v. Robinson, 82 N. Y. 103; Boughton v. Flint, 74 N. Y. 477; In re Huish, 43 Ch. Div. 260. The courts so little favor the discharge of debts by legacies that they have uniformly laid hold of slight circumstances to overcome the presumption that payment was intended independently of the direction to pay debts. Hence, when the gift has been of land or of goods and chattels, or upon conditions unfavorable to the donee when compared with the present discharge of the debt, the payment of both has been required. 2 White & T. Lead. Cas. 821. "Money and land being things of a different kind, the one, though of greater value, shall never be taken in satisfaction of the other, unless so expressed." "Whatever is given by will is prima facie to be intended a benevolence." Eastwood v. Vinke, 2 P. Wins. 613, 616. In this case the court remarked: "But, though the court has gone so far, it never yet construed a devise of land to be a satisfaction for a debt of money." In Bryant v. Hunters, 3 Wash. C. C. 48, Washington, J., says: "The general rule is that a devise of land is not a satisfaction or part performance of an agreement to pay money." See, also, Eaton v. Benton, 2 Hill, 576, 580. The bond in this case being for the payment of money, and the gift being land, the construction must necessarily be controlled by the eases cited. It can make no difference that the payment of the bond was secured by mortgage on the land devised. It cannot be doubted but that the gifts of goods and chattels and proceeds of bank-stock and residue by the testatrix to her son Harry are alike subject to the same conclusion that governs with respect to the devise of land. According to all of the cases there is no similitude whatever between those gifts and the obligation which the testatrix had directed her executor to pay.
I have not thought it necessary to put any stress upon the fact that both the bond and the mortgage were given to the guardian of the devisee and legatee. It has been suggested that if this bond be paid to the guardian of Harry, Harry's proportion of the estate of the testatrix will be much larger than the portion received by his brother and sister. This would be an important consideration if it were the duty of courts to construe wills so as to make an equal disposition of the estate disposed of thereby among legatees and devisees, irrespective of the directions of the will. There is nothing in this will to give any certain assurance to the court that the testatrix intended to make an equal disposition of her estate among her children. If there beany inequality in the value of the gifts, the testatrix may have had very good reason therefor; but, whether she had or not, she had a lawful right to make any distinction she chose. This bond must be first paid out of the personal estate, as other debts, before the payment of any of the legacies.
The next question presented for consideration is whether or not the interest devised to Harry be less than the fee-simple absolute. When the sentence making the devise to Harry is read, if there be any doubt as to the extent of the interest devised, such doubt will be dissipated upon careful reflection. The testatrix first declares that she gives him the premises absolutely, but afterwards gives such directions as at first view would seem to have been intended as a qualification to the extent of limiting his interest to the rents and profits until he arrives at the age of 21 years. But when this sentence and this apparent qualification are read in connection with the succeeding clauses in the will, by which gifts are made to Harry, the doubt is removed. She ordered the silver to be divided between her three children; but Harry's interest in other personal property and in the bank-stock and in the residue of the personal property is to be retained by the executor, and the Interest and dividends paid to Harry, until he arrives at the age of 21 years, when he is entitled to the possession of the principal. From the control given to the executor over the interest of Harry until he arrived at the age of 21 years the testatrix in all probability intended to provide against the necessity of appointing a guardian for him. In my judgment the fee-simple absolute vested in Harry.