Opinion
01-05-1897
WOOSTER v. COOPER et al.
James Buchanan, for complainant. John J. Crandall, John W. Wescott, and William Moore, for defendants.
Bill by Charles I. Wooster against William T. Cooper and others. The will referred to in the opinion gave testator's entire estate to his wife during her life, with power of disposal, and directed the executors, at her death, to convert what then remained into cash, and distribute the proceeds among certain legatees.
James Buchanan, for complainant.
John J. Crandall, John W. Wescott, and William Moore, for defendants.
GREY, V. C. At the hearing of this cause it was disclosed by the terms of the will, which was passed upon by the court of errors and appeals in the case of Wooster v. Cooper, 53 N. J. Eq. 682, 33 Atl. 1050, that the first taker, Tacy Cooper, was held to have under the will a life estate only. The court gave no opinion as to the effect of the will in disposing of the fee. An examination of the will shows that the testator made no disposition of the fee, and died intestate of it. The cause now being heard is based upon the claim upon the part of the complainant in the cross bill to have a decree made directing an accounting, and also the exercise of the power created by the will by ordering the executors to convey to the legatees to whom the proceeds of sale are given.
An examination of the bill and of the files of the case shows that the heirs at law have not been made parties to the proceeding. I deem them to be necessary parties in a case of this character, and that no decree can properly be made directing the exercise by the donee of the power created by the will, the effect of which is to take away the title which was vested by descent in the heirs at law, unless these heirs at law have been made parties to the bill of complaint, with proper words of allegation and charge. The complainant in the cross bill may make such amendment to his bill as may be necessary to make the heirs at law parties defendant, and bring the parties into court on the amended bill, and proceed according to the practice of the court.