Cogswell and another, executor and executrix, &c. of Cogswell v. Cogswell and others, 2 Edw. Ch. 231

The Vice-Chancellor: I. The first question raised by the bill in this cause, upon which the complainants ask the advice and direction of the court is: from what time Mrs. Cogswell, the widow, is entitled to the dividends on the three thousand pounds sterling British government three per cent, stock. I infer, from the manner in which this is mentioned in the will, that the testator possessed the particular stock at the time of his death.

He does not direct the trustees to make an investment for that purpose, as in other instances where he is desirous of creating an income for annuities ; but the bequest is specifically of the interest or dividends upon three thousand pounds sterling British Government three per cent, stock, which the trustees are to permit the widow to take during her natural life.

I am of opinion, as the will takes effect from the death of the testator, the widow is, from that time, entitled to the dividends, that is to say, the dividends which may accrue or be declared or become payable at any time after the death of the testator. II. Next, as to her annuity of one thousand dollars.

This is to arise, not from an investment airead}' made, but one to be made in stock of the United States or of this State or of some oank ; and as the testaior has not appointed the time within which the investment should be made, I think the executors may take one year for the purpose, in analogy to the time allowed by lawfor paying legacies : 2. R. S. 90. §. 43.

The gross sum to be set apart to produce the yearly income of one thousand dollars is considered in the light of a legacy payable by law at the end of a year: 1 Roper on Leg. 588.% and consequently, the widow can only demand the income to accrue from it as commencing at that time, and she will be entitled to receive such interest or income quarterly, half-yearly or annually thereafter as dividends are declared. This, I think, is the plain meaning of the will. III.

The same may be said of the investment of one thousand dollars directed by the codicil to be made in like manner for the use of the two nieces Louisa and Ann W. Cogs-well ; and the like rule must be adopted with respect to the commencement of the interest payable to them. There is no difference in principle. IV. Then, as to the two mortgages existing on parts of the real estate. The question is, who are to bear the burthen of them, and in what proportions and how and by whom are the principal and interest of such mortgages to be satisfied 1 By the R.

S., 1. vol. ,749. §. 4., the devisee of real estate, subject to a mortgage executed by the testator, is bound to satisfy and discharge it out of his own property, without resorting to the executor, unless there be an express direction in the will to the contrary. Here there is no such direction.

A life estate in the house and lot in Cedar street (encumbered by a mortgage of ten thousand dollars, being one of the the houses there situated of which the testator died seized) is given, under the trusts of the will, to the widow of the testator and to his brother Jonathan and sister Lois in equal thirds; and by the residuary clause, an estate in fee in remainder in the same property is given to the two nieces Mary and Elizabeth L. Cogswell, subject to the contingency of their dying without issue.

The same is the case with respect to the ten vacant lots on Front street, which are under a mortgage of .two thousand six hundred and ninety dollars. Now, as between the tenants for life and those entitled in remainder, the former are bound to keep down the interest on the mortgage debts, and they must contribute alike out of their respective, shares of the rents and profits during life to pay the interest on those sums. As the life-estates fall in, the principal sums remain a charge upon the inheritance and must be borne by those who succeed to it.

The tenants for life are not bound to extinguish the incumbrances. They are only to keep down the annual interest: 4. Kent’s Com. (1. Ed.) 72. 73.; and as a consequence of this rule, in case the mortgagees should call in their money or if it should be found expedient to pay them off out of the residuary personal estate belonging to the nieces Mary and lElizabeth, they will be permitted to stand in the place of the ¡mortgagees so far as to collect the interest payable by the 'tenants for life. It appears that the executors have already paid off the mortgage of ten thousand dollars.

The life-estates must bear the interest which accrued upon it from the death of the testator to the time of such payment; and they must continue to be charged with the interest on the principal sum in the same manner as if the mortgage remained. And the same rule must be observed with respect to the two thousand six hundred and ninety dollars whenever that mortgage shall be paid. V.

As regards the contract for the purchase of the lot in Chapel street: by whom is it to be completed and out of what fund is the balance of the purchase money to be paid I Upon the principle that equity considers that as done which is agreed to be done and that from the time of entering into an effectual contract for the sale of lands the purchaser is looked upon as the owner, so that in the event of his death the land descends to his heir or may be devised in his will: the change being as complete under a contract in the view of a court of equity as though the legal title had been conveyed: Jeremy’s Eq.

Jur. 44ti, there can be no doubt but this lot is included in the devise of the life-estates before mentioned and of the remainder to the same two nieces. The balance of the purchase money unpaid stands as a debt against the testator which the executors must pay out of the personal assets like any other debt, unless it shall be found most advantageous to those interested in this part of the estate to rescind the contract with the vendor if he will consent. But I see nothing to prevent the tenants for life from insisting that the purchase shall be completed for their benefit.

The title will, of course, be taken to the executors in trust for the purposes of the will. The circumstance that the old store house which stood upon this lot has been destroyed by fire since the death of the testator, does not give the tenants for life a right to have it rebuilt at the expense of other parts of the estate : because the lot as vacant is proved to be as valuable as it was with that building standing upon it. VI. Another question is: whether any and what improvements are to be made upon the Chapel Street lots, the lots in Front Street and those in Charles Street; and if so, out of what funds ?

Most of these are vacant lots. Such buildings as are standing upon any of them are of little value, and the property, in its present condition, is bringing very little income. Still, this affords no sufficient reason for applying the residuary personal estate to the erection of new buildings or the making of improvements on the lots for the benefit of the life-tenants. The testator has given no directions to this effect; and the parties must be content to take the property in the condition in which it happens to be at the death of the testator.

They are at liberty to make leases for their lives, and to do any thing they please with the property for their own benefit not amounting to waste or injury to the inheritance—and this too without requiring any direction or authority from the court for the purpose.

If the interest of the .money for which the lots would sell should be deemed better than any rents which can be obtained for the lots, a sale, perhaps, under the law of partition, may be effected; and in that event the proceeds can be invested upon security at interest during the continuance of the life estates for their benefit—but, at present, the court has nothing to do with that matter. VII.

The remaining question to be considered is: whether the four buildings on Cedar Street, about to be demolished by the widening of that street, are to be rebuilt; and if so, out of what funds—or what other disposition are the trustees to make of this portion of the property? The Corporation of New York take off" ten feet from the front of the lots to widen the street. This proceeding is subsequent to the death of the testator and it has produced an alteration in the condition of the property not foreseen or provided for in the will.

Whatever advantage results from an increase in the annual value of the property in consequence of the lots becoming more valuable as scites for ware-houses, and which is abundantly proved, the tenants for life are entitled to. On this point there is no dispute. But how are they to avail themselves of it? Warehouses are the proper buildings to be erected on the lots, in order to bring the best income. This is likewise proved.

The persons having the life-estates cannot be required to erect buildings at their own expense ; nor, under leases of so uncertain a tenure, as for lives only, can lessees be found who will pay a reasonable ground rent and at the same time, put up buildings of the proper description, and be obliged to remove or leave them at the expiration of the leases, without being compensated for their cost or value.

It is said, however, that, upon leases for a term certain, not less than twenty-one years, requiring the lessees to cónstruct such buildings as they may think property, with the privilege of removing them at the end of the term, a ground rent of one thousand dollars per annum for each lot may be obtained ; and testimony to this effect is produced.

But the difficulty in this case is, that the life-estates may cease before the expiration of leases, granted for a term certain, as for twenty one years, and in that event it may be injurious to those in remainder when they come into possession to find the inheritance incumbered by an outstanding term; and so, on the other hand, the life estates may possibly continue beyond the expiration of such leases—in which case, the lots may be left vacant' upon their hands and unproductive for the residue of their lives.

It is true, this last difficulty may be obviated by granting leases in the first instance for the term of twenty-one years at all events, and for as much longer as the life estates or any of them shall continue. Yet, this term of twenty-one years certain cannot be granted safely, because those entitled upon the dropping of the life estates are now infants and will not be bound by any assent of their guardian ad litem; nor is there evidence before me to show that theirdnterest requires the court should undertake to bind them by its decree to the observance of such contracts.

The only other method proposed, and it appears to me to be the one liable to the least objection, is that the trustees should be allowed to appropriate about thirty thousand dollars of the residuary personal estate to the erection of new substantial ware-houses upon the four lots, each building to cost (according to the testimony of what will be suitable and proper in this respect) about seven thousand five hundred dollars, reserving an interest of six per cent, upon the actual cost to be paid out of the rents. and in addition thereto a reasonable allowance for the natural depreciation and wear and tear of the buildings until the life estates shall fall.

In this way, the tenants for life will receive the “nett rents and profits” of this portion of the estate and, in the meantime, the money expended in buildings will be a safe investment and drawing interest (the tenants for life keeping the buildings insured and paying the taxes) and upon the determination of the life estates, those to whom the money invested will bejong, come into the possession of the same in the permanent improvements upon the lots—somewhat lessened in value, it is true, but the depreciation compensated for in the allowance made for the purpose.

This appears to be just and equitable on both sides. I shall, therefore, adopt it. There must be a reference to ascertain the proper allowanee to be made by the tenants for life on account of the depreciation in the buildings. For this purpose, the master must ascertain the probable duration of the lives, taking ars average of the three, and how much less the buildings will be worth at that time from natural causes and ordinary use than when new and this amount he must apportion to be paid out of the rents in such manner as may be just. The question of costs and further directions are reserved. Order accordingly.