Wood and others vs. Vandenburgh and others, 6 Paige Ch. 277

The Chancellor.

As the answer of L, Ryersdorf and wife denies the correctness of the inventory made by the complainants, and as there are other allegations in the bill the correctness of which are material to be known before a final distribution of the estate can be made, and as many of the defendants are infants, there must be a reference to a master to take an account of the estate which has come to the hands of the complainants, and of the administration thereof, There is, however, sufficient before me to enable the court to settle the principal questions in controversy between the several defendants interested in the estate of the decedent.

It is supposed by the counsel for J. Ryersdorf, the infant nephew of the decedent, that it is not necessary to look into any transactions between Jacob G. Vandenburgh and his father previous to the will of the son; as the father has released to the executors all his interest in the property devised by his own will, in trust to sell and dispose of the monies arising therefrom according to and in compliance with the directions contained in the will of the son, in the same manner as if he had died seized of the whole real estate ; and to apply the money fully and absolutely to the purposes of that' will.

In giving a construction, however, to this release of the father, we must look at the circumstances under which it was given, for the purpose of ascertaining what was the real intention of the parties to such release. By the original agreement the father had not given the property absolutely to his son, but had devised it to him charged with the payment of certain legacies and other testamentary provisions after the death of the mother 5. and had also covenanted not to alter or revoke bis will without the consent of his son.

It was still, however, a testamentary disposition of his property, which became lapsed by the death of the son in the lifetime of the testator.

But as the agreement between the parties had been carried into effect in good faith by the son, so far as he was capable of performing it in his lifetime, and as provision had been made by him in his own will for carrying into effect not only the agreement with his father but also every provision contained in the will of the latter, the father very properly considered that it would be just and equitable to give to the several objects of the son’s bounty the full benefit of the original testamentary disposition of the father’s estate, in the same manner as if the devises and bequests in his favor had not become lapsed by death; subject, of course, to the charge of performing so much of the original agreement •with the father as provided for the support of the father and mother and unmarried sister; and charged with the payment of the several legacies to those who were the other-objects of the father’s bounty, six years after the death of the latter.

This, therefore, is the true construction to be given to the release to the executors.

And the property-in the hands of such executors, except so much thereof as was necessary for the support and maintenance of the father and the unmarried sister, must be disposed of in the same manner as if the son had survived his father and had made his own will after the property had become vested in him under the original will and agreement of the father; or rather, in the same manner as if the father, at the date of the original agreement, had conveyed to him all the property not specifically bequeathed, charged in the first place with the support of the father, mother and unmarried sister, and then .charged with the payment of the several legacies mentioned in the will of the father.

I am satisfied no other construction can be given to these complicated transactions without doing violence to the intentions of the parties thereto.

The weaver’s loom, with the fixtures and improvements, and the wearing apparel of the father and his household furniture, which were specifically bequeathed by his original will, still belonged to him, and formed no part of the personal estate of the son; and if he had not altered his will in this respect, or otherwise disposed of the loom and furniture in his lifetime, these specific bequests did, upon his death, vest in those for whom they were originally intended by the will, so far as they had not become lapsed by the death of the legatees in his lifetime.

They are therefore to be laid entirely out of the question in taking the account of the estate of J. G. Vandenburgh which has come to the hands of his executors. The agreement with the father, for the support of himself and wife, and his unmarried daughter Catherine during her celibacy, constituted an unliquidated or unascertained indebtedness of the decedent which he owed at the time of his death; although by the terms of the agreement it must necessarily be ascertained afterwards.

And as the will of the decedent directed all his just debts to be paid out of his personal estate, or out of the proceeds of the real estate if the personal fund proved insufficient, the agreement for the .support of the father and unmarried sister was not discharged by the release of the father to the executors; which release was perfectly consistent with this claim against the estate of the decedent, under the trust for the payment of debts as contained in the will of the latter.

But as the will of the decedent has made a provision in favor of the unmarried sister for her support after the death of her father, in lieu of the provision contained in the agreement, she must elect, before the master, between the agreement as to her support after the death of her father and this residuary bequest to her in the will of the decedent. If she elects to receive her support subsequent to the death of her father, as a debt which is entitled to priority of payment under the agreement, then her share of the residuary fund, if any, is to go to the other residuary legatees.

And the magter; jn case> must, ascertain and set apart a sufficient fund for her support for life, if she shall remain so long unmarried. But if she shall elect to receive what she may be entitled to under the residuary clause of her brother’s will, then the master is to allow for her support up to the time of her father’s death only, and she must refund to the executors what she has since received.

The decree must also declare that the provision for the support of the parents and unmarried sister was a debt due from the estate of the decedent, and was entitled to a preference in payment out of any funds or property which belonged to him at the time of his death, or which his executors have since acquired under the release from the father. The legatees named in his will and codicils, were next entitled to their specific legacies of particular articles of the decedent’s personal property, to wit, the two mares and colts, and his wearing apparel.

If the other real and personal property which belonged to the decedent at the time of his death was more than sufficient for the support of his parents and unmarried sister, and the payment of other-debts and funeral expenses, and the erection of grave stones, as provided for in the will, the legacies for the support of negro Tom, and of $500 and interest to Jacob Ryersdorf for his education, must next be provided for out of the proceeds of that part of the estate; and the master must set apart a sufficient fund for the support of negro Tom, and for the payment of the $500 and the interest now due thereon.

And if that part of the decedent’s property is not sufficient for both legacies they must abate rateably ; or the payment of the residue of both out of the estate of the decedent’s father, which was released by him-to the executors, must be postponed to the payment of the several legacies which by the will of the father were charged upon the estate devised to his son.

As the legacy of $500 for the education of Jacob Ryersdorf, and the provision for the support of negro Tom are both general in their natures, and are payable out of the same fund, without any indication in the will of the decedent that either should have a preference over the other, they must of course, in case of a deficiency of assets, abate rateably. (See Ward’s Law of Leg. 371; 2 Will.

Law of Ex’rs, 840.) But it appears to be altogether unreasonable that the intention of the testator to have suitable head stones erected at the graves of his parents and of his deceased brother and sisters should be defeated by an abatement in favor of general legatees, upon a deficiency of assets. And I find a precedent for giving a preference to such a testamentary disposition of the decedent’s property, in the case of Masters v.

Masters; in which case Sir Joseph Jekyl decreed a provision for the erection of a monument to the memory of the mother of the testatrix to be paid in full, notwithstanding there was a deficiency of assets to pay all the general legacies. (See 1 Peer Wins. Rep. 423, 6th Lond. ed. note 1; Ward’s Law of Leg. 375.) I shall therefore direct the master to make a suitable allowance for the erection of these head stones, out of the decedent’s own estate, in preference to any general legacies.

The erection of a suitable head stone at the decedent’s own grave may properly be considered as a part of his funeral expenses, in a case where the rights of creditors cannot be defeated thereby.

The payment of the general legacies to the four sisters and to the children of a deceased sister of the decedent, which were charged upon the estate devised to him by the will of his father, are entitled to a preference in payment, out of the proceeds of the estate which was released to the executors by the father, next after the provisions for the support of his parents and the unmarried sister, before any of the legacies and bequests which are contained in the will of the decedent only, to which his legatees would not have been entitled, under the will or agreement of the father, if the decedent had died intestate after his father’s will had taken effect by death.

In other words, the executors took the property released to them by the father, charged not only with the support of the decedent’s parents and unmarried sister as a specific lien thereon as for a debt, if the other estate of the decedent was not sufficient for the payment of that debt, but they took it also charged with the payment of the legacies, six years after the death of the father, according to the terms of his will, as I have before stated.

By the will of the decedent, taken by itself, these legacies which are directed to be paid to his father’s legatees, would as general legacies be liable to abate rateably with the legacy for the support of negro Tom and for the education of Jacob Ryersdorf, if all the legacies in respect to the decedent were mere gratuities or bounties. But as he was to take the property, devised to him by his father, charged with the payment of these first mentioned legacies, there was, so far as related to that fund, a valuable consideration for this testamentary gift of the decedent.

Those legatees, therefore, take them legacies as purchasers ; and they are only liable to abatement as between themselves. (See Heath v. Bendy, 1 Russ. Rep. 543; Davenhill v. Fletcher, 1 Blunt's Amb. 245, note 2; 2 Will.

Law of Ex’rs, 839.) The sum of $500, out of the proceeds of the property released to the executors by the father of the decedent, must therefore be set apart and securely invested for the payment of these legacies at the expiration of six years after his death ; and the interest or income thereof, in the meantime, must be disposed of as a part of the funds of the estate, for the payment of debts and other legacies not before provided for. As the support of the parents and unmarried sister and of negro Tom, exceeded the income of the estate, exclusive of the $500 and interest for the education of J.

Ryersdorf, there was no interest or income to be paid over to the decedent’s parents, for life, beyond the amount of the provision for their support. The next question which arises, therefore, is, whether the nephew, Jacob Ryersdorf, was entitled to a second legacy of $500, payable out of the residuary estate of the decedent after the death of the father and after the nephew shall be of age.

And upon a comparison of the several claims of this will, I am satisfied that the testator intended that his nephew should have two legacies of $500, The legacy for his education was to draw interest from the time of the settlement of the estate, or the investment of the proceeds thereof: that is, from the expiration of one year after the death of the testator, which is the time allowed by law for that purpose. And the principal of that legacy was to be paid when the legatee arrived at the age of twenty-one or sooner, if necessary, even if the testator’s parents should then be living.

But the other legacy is made payable out of the residuary estate of the decedent, after the payment of all other legacies and claims thereon except those in favor of the residuary legatees. And by the terms of the will, this last legacy of $500 was not to be paid until after the death of both of the testator’s parents, and when the legatee should have arrived at lawful age. It was a vested legacy, but payable in futuro ;• and which does not carry interest until after the time appointed for its payment.

This last legacy of $500 must therefore be paid out of the residuary estate, if any such there shall be ; and if paid before the time appointed for that purpose by the will of the testator, the interest thereon until that time must be discounted.

Whatever remains of the estate after that must go to the residuary legatees of the decedent, aceording to his will; subject, however, to the directions herein before given as to the election of Catherine the unmarried sister,'between the one-sixth of the residuary estate and the provision for her support after the death of her father, according to the agreement of the decedent.

As it was proper for the executors to take the opinion of the court in relation to the various and entangled equities of the several defendants, arising out of this very complicated trust, their costs, and the costs of the guardians ad litem of the several infant defendants, must be paid out of the funds in the hands of the executors. And a decree must be entered according to the preceding decision and directions ; which decree must also declare that the defendant Heartt has no claim upon the estate as a creditor.

If practicable, the consequential directions to the executors upon the coming in and confirmation of the master’s report should also be contained in this decree ; so as to save to-the estate the unnecessary expense of bringing, the case before the court upon any equities reserved. I understand that Gilbert Vandenburgh, the father of the decedent, has died since the argument of this cause; and as the whole of the subject of this litigation survives to the other defendants, there must be an order suggesting his death and directing the cause to proceed against the other defendants alone.

The general decree in the cause will then be entered, leaving out his name in the title, or naming the other' defendants as his survivors.