Morton v. Morton , 2 Edw. Ch. 457 ( 1835 )


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  • The Vice-Chancellor:

    No question has been made as to the validity of the will concerning the real estate. For the purposes of the present suit, all parlies in interest must be deemed to acquiesce in the validity of the trusts of the realty as well as in those of the personal property.

    The fifth trust-clause of the will, upon which this question arises, seems to me to admit of but one construction consistently with the object and meaning of the testator.

    He, in the first place, directs a division and distribution of his personal estate, not otherwise specifically bequeathed, to and amongst his five children, deducting what is to be charged to each with all advances made to them, so that, in the division, the monies advanced by him in his lifetime to his sons are to be taken into the account and to constitute a part or to absorb the whole of their shares as the case may happen to be, having reference to an equality among them all: for he expressly says, “ if said personal estate be sufficient by such deductions to make an equal division of the same.” This equality, then, is a condition upon which a division, by bringing in the advancements, is to be made. But it turns out that the amount of the personal estate, including the debts or money owing by bis sons, does not admit of a compliance with this condition. The amount advanced to each exceeds considerably a one equal fifth part of the whole twenty seven thousand eight hundred and twenty dollars :—a division and distribution upon that principle therefore fails ; and, in that event, the testator declares it to be his will that the shares of the rents and income of the real estate, as previously devised, belonging to such of the children as have received advancements, shall be retained and appropriated to the re-payment thereof until *460reduced to six thousand dollars each and that sum to be considered a permanent loan on. interest chargeable upon their shares respectively of the real estate.

    Here, then, by the express directions of the will, the amounts of the advancements, as they are called, which, in one event, were to be charged upon and taken out of the shares of the personal estate upon a division, but which event has not happened, are, in the alternative, transferred to and charged upon the real estate ; and the w'ays and means are provided for the liquidation and re-payment of the whole amount out of the real estate to the entire exoneration of the shares of the personalty. It follows, as a necessary consequence, that the personal estate, which is still to be divided, must be apportioned equally amongst the five, excluding altogether the advances and taking no notice of them in the account of the personal estate or in the division.

    As to the debts owing to the testator from some of his children dnd devisees: he has thought proper, in the event of such debts absorbing more than their equal shares of his personal property, to turn them over to his real estate to be paid out of the shares which he has given them there and which will be abundantly sufficient.

    This appears to me to be a clear and simple exposition of the will and one w'hich comports with the views which the testator has expressed. Any other construction or mode of dividing the personal estate than by simply deducting from the twenty-seven thousand eight hundred and twenty dollars the amount of the advancements to Peter and Thomas, and apportioning the residue into five equal parts and paying Over to each child his and her one fifth part, leaving those advancements to be repaid and deducted from their shares of the real estate in the manner pointed out, which eventually will make them all equal, would, I consider, be making a new will for the testator, instead of conforming to the one. already made.

    Decree accordingly. Costs to be paid out of the personal estate.

Document Info

Citation Numbers: 2 Edw. Ch. 457

Filed Date: 5/12/1835

Precedential Status: Precedential

Modified Date: 1/12/2023