Vernon v. Executors of Marsh ( 1836 )

The Chancellor.

The case, as made by the pleadings, is with the defendants. They were constituted trustees by the will, and directed to invest the sum of three thousand dollars, given to Eliza Ann Marsh, the complainant, (then being unmarried,) at safe interest, and to collect and pay over the interest regularly to the said Eliza Ann, in her own proper person, taking her receipt alone therefor, and not otherwise; and they were further charged and directed, that if either of the daughters of the testator should be desirous to have her money, or part thereof, laid out in the purchase of real estate, for her use and convenience, whether married or otherwise, they should take the title for any property so purchased in the name of such daughter only.

The bill charges, that the complainants have agreed to purchase a house and lot in Newark, and that the trustees are unwilling that the title shall be made to the said Eliza Ann Yernon— she being the daughter of the testator, as named in the will, and insist on having the title made to themselves.

This is denied by the trustees. They say they have no desire to have the title in themselves, and are desirous to be relieved from the trust; but that the daughter herself is unwilling that the title should be taken in her name, if by so doing the property will be liable to be charged in any way with the debts of her husband. The trustees having been advised that such will be the result, have refused to pay the money and take a title in the name of Mrs. Yernon,. the daughter. This unwillingness on the part of the daughter is explicitly and repeatedly alleged by the defendants in their answer, and the facts must be taken as true.. The case is thereby relieved from difficulty ; for it is evident from the will, that the trustees can act only on the desire of the wife,,, and not that of the husband. There is no such desire made out',. but the contrary, and there must be a decree for the defendants, with costs.

The object of the parties appears to have been, to obtain a legal construction of the will. The cause may be disposed of without giving such construction j but to prevent further litigation or difficulty, I am satisfied to say, that the trustees are bound by the will to lay out the money in the purchase of real estate, whenever the wife shall so desire it, bona fide, and understandiqgly; and that they are not to be governed by the consideration, that the husband will thereby acquire an interest in the lands, which may be charged with his debts. The directions of the will in this behalf are very plain. The intention of the testator is to be taken from the instrument, and not from conversations which took place at the time it was- prepared; and laying those conversations aside, there can be no reasonable doubt as to the proper construction of the will, or the duty of the trustees under it.

Let the bill be dismissed.