Aldrich v. Green ( 1888 )

Learned, P. J.

We have examined the proceedings for the sale of the infant’s real estate in this case, and we find no defect which can render them invalid. They differ in no important respects from the proceedings proved in the case of Aldrich v. Funk, ante, 541. The only point, then, which we need to examine, is whether the sale under these was against the provisions of the will of John W. Fonda. Section 1762, Rev. St. The will gave an estate to the widow during widowhood. It then gave the real estate to be divided equally between the two children, of whom plaintiff was one. There could be no question that this gave them a vested estate in remainder, subject to the life-estate of, the mother, if it were not for the following clause, on which plaintiff-relies: “If they should be of the age of twenty-one years; if not, to remain under the control of my hereinafter named executor till they shall have attained the age of twenty-one years each, then I will the said estate to be equally divided between my two children, their heirs and assigns.” There is no power given to the executor to divide. Therefore the words, “to be divided equally, ”, only express his intention that each was to have an equal share. They are mere surplusage. The two children took their shares in severalty at the death of the testator. An actual division could be made by them when they were of'age, or by the court before that time. The words, “to remain under the control of my hereinafter named executor till they shall have attained the age of twenty-one years each,” may be understood of the children themselves; that is, that they were to remain under his control as their guardian. But the executor was clothed with no trust to receive rents and profits and apply to their use. Probably the testator’s idea was that, if his widow married, the executor was to be guardian of the children. As such, he would, in a certain way, control the real estate. But he would have no title to it. The executor was removed in December, 1854, and in April, 1857, the proceedings to sell the infants’ property were taken. We think that the sale was not in any way contrary to the provisions of the will. , The life-estate of the widow did not postpone the vesting, but only the possession, of the infants’ real estate; and even the mother’s estate had ceased by the marriage, in 1856, before the proceedings for sale here taken. The judgment is affirmed, with costs.

Landon, J., concurring.