Passman v. Guarantee Trust and Safe Deposit Co.

and revenue, pay taxes and repairs and the expense of the trust, and to pay over the net income annually in twenty-two parts, unequally distributed among named beneficiaries. The portions of the net income given to each beneficiary are expressed to be given to him, "his heirs and assigns forever."

No power of sale is created by the will. The provisions for the collection of rents and for the expenses of repairs indicate that the testator, in disposing of this residue to produce an income, expected it to continue, in part at least, as real estate. There is no further disposition of the property included in the residue than is shown by the gift of the income to be derived from it, and there is no limitation over of any of the shares of the income. In fact, there is no testamentary action of any kind touching the residue, than the gift of the income to the first takers. As the trust is expressed in the will, the trustees must keep the principal of the fund, and pay out the net income to the beneficiaries, their heirs and assigns, without limit of time or circumstance. The only duty the trustees are charged to perform is to collect income, pay taxes, repairs and expenses, and turn over the whole net income, so that it should not be liable for the debts of the beneficiaries.

The rule appears to be settled that the bequest of the income without limit as to time, or gift over which can operate, is a bequest of the principal, if there be no expression of a contrary intent. Elton v. Sheppard, 1 Bro. Ch. C. 532; *Haig v. Swiney, 1 Sim. & S. 487; Manning v. Craig, 3 Gr. Ch. 436; Craft v. Snook, 2 Beas. 121; Gulick v. Gulick, 12 C. E. Gr. 500. The same rule applies whether the gift be direct or through the intervention of a trustee. Ibid. So a devise of the income of land without limitation or devise over, is equivalent to a devise of the land itself. Den v. Manners, Spenc. 144; Diament v. Lore, 2 Vr. 222; Post v. Rivers, 13 Stew. Eq. 22; Conynham v. Conynham, 1 Ves. Sr. 522; Sir Thomas Plumer, V. C., in Stretch v. Watkins, 1 Madd. 143. The same rule applies to a gift of a perpetual annuity. Huston v. Read, 5 Stew. Eq. 596. In devises of trust estates where no conveyance is directed to be

*See first American edition from fifth London edition, Boston, 1844.-REP.

Passman v. Guarantee Trust and Safe Deposit Co.

made the construction is the same in chancery as it would be at law upon a devise of the legal estate. Martling v. Martling, 10 Dick. Ch. Rep. 781.

The operation of the rule is not defeated because some duty in realizing assets and securing and paying the income is cast upon the trustees. In Earl v. Grim, 1 Johns. Ch. 499, executors were directed by the will to rent or sell lands as they saw fit, and, in case of sale, to put the money at interest and pay the interest annually to G. P., &c. Chancellor Kent held that those who, by the terms of the will, were entitled to the interest were also entitled to the principal of the proceeds of sale. In Phillips v. Chamberlain, 4 Ves. *51, the testator gave the residue of his real and personal estate to trustees to convert into money and invest, &c., and directed them to pay the surplus of dividend and interest to his daughter, son, nieces, &c. The court held that the bequest to the trustee upon trust, to pay the interest from time to time without limitation of duration, carried the principal also.

In the case under consideration the whole income is given to the cestuis que trustent, their heirs and assigns. As between the beneficiaries and the trustees, the latter have no power to refuse the payment of any portion of the income, nor have they any duty to retain the residuary estate for the benefit of any successor in interest.

The whole structure of the will shows that the testator disposed of all his estate of every character, and had no intent to die intestate of any portion of it. The phrasing in the residuary clause, by which the shares of income are given to the beneficiaries, their "heirs and assigns," indicates an intent to give to them an absolute estate in the residue, and when considered in connection with the absence of any further gift, must, I think, bring the construction of this residuary gift under the rule applied in Phillips v. Chamberlain, ubi supra, where there was an absolute and unlimited gift of income to arise from a disposition of both real and personal estate, and it was held to pass the title to the principal of the funds realized.

The answer admits that the defendant the Guarantee Trust

Riley v. Hodgkins.

and Safe Deposit Company accepted the position of trustee under Thomas Costello's will. The buildings on the premises on Atlantic and Maryland avenues are shown to be in very dilapidated condition and probably produce little rent or profit.

The trustee should state an account of the gross receipts of income from the residuary estate and of its disbursements therefrom and lawful charges, and should pay over the balance in hand to the complainants, according as their holdings of residuary shares may entitle them.

In view of the apparent devolution of title to the residuary lands upon the trustee by the terms of the will, it may be desirable, in order to perfect the chain of title upon the record, that the trustee should convey by deed with proper recitals, but without warranty, to the holders of residuary shares, in the proportions in which their interests may appear. This mode of relief is not specifically prayed for, but is within the scope of the general prayer. The several steps by which the immediate devisees passed their shares to grantees should have been made by deed effectual to pass real estate. No costs should be taxed as against the defendants.

JAMES RILEY

v.

ADDIE HODGKINS et al.

[Filed December 29th, 1898.]

1. The bill of complaint is sufficient if it state the legal effect of the complainant's claim; matters of defence not affirmatively appearing on the face of the bill, must be brought into the record by plea or answer.

2. A contract to convey lands set out in a bill of complaint will not on demurrer be held to be too vague in its identification of the property dealt with, where the elements of description are not manifestly applicable to different tracts, and they so point out its situation that it may be located, and so name or suggest its boundaries, that when the lot is located they may with reasonable certainty be ascertained on the ground.

Riley v. Hodgkins.

On demurrer to bill.

Mr. Henry J. Melosh, for the complainant.

Mr. Charles B. Hughes, for the demurrant.

GREY, V. C.

The bill in this cause is filed to obtain the specific performance of an alleged agreement to convey six lots in Jersey City. The title to the lots is stated by the bill to be in the defendants Addie Hodgkins, Mary S. Shumway and Hattie A. Millett, the heirs-at-law of one Benjamin B. Hamblin, deceased. The bill alleges that on January 31st, 1898, the complainant,

"through and by a certain John R. Foley, who at that time and prior thereto then and there was the agent of the said heirs-at-law of the said Benjamin B. Hamblin, purchased the said premises herein before described, and by contract in writing, signed by the said John R. Foley, bought the said premises," &c.,

at the price of $1,500 of which, as an earnest, he paid $100 on account. A receipt was given, which is alleged to be the contract for sale, in the words and figures following:

"JERSEY CITY, January 31st, 1893.

"Received from J. Riley one hundred dollars on account of fifteen hundred dollars purchase price of lots 5, 6, 7, 8, 9 and 10 in Block (Old No. 6) New No. 953, and being located on the northwest corner of Spruce and Hudson County Public Road. Balance of purchase price $1,400, to be paid on delivery of good and sufficient deed free and clear of all encumbrances whatsoever. Title to pass at office of J. Riley, corner of Grove and Second streets, Jersey City, on Tuesday, March 1st, 1898, at one o'clock in the afternoon. "JOHN R. FOLEY,

"per F. J. GUILFOYLE."

The bill further alleges that the complainant demanded performance of the "said agent of the said heirs," and that he refused to give the complainant a proper deed, &c., and tenders himself ready to pay the price according to the contract; that by the contract the title was to be free from all encumbrances, but that in fact municipal taxes on the premises for 1893, 1894,

Riley v. Hodgkins.

1895, 1896 and 1897, with arrears of interest, remain unpaid; that on February 25th, 1898, the heirs of Hamblin did, by deed, convey the premises in question to the defendant Francis W. Mitchell, for the nominal consideration of $1; that this conveyance was made to defraud the complainant of his rights under the contract, and that Mitchell is not an innocent purchaser, and his title is subject to the complainant's equitable interest under the contract. The bill makes defendants the heirs-at-law of Hamblin, and Mitchell, their grantee, and prays a decree that the defendants shall perform the contract by conveying the premises to him clear of encumbrances, tenders himself ready to pay the balance of purchase-money, and further prays that interest be allowed him on his advance payment, and that if defendants do not free the premises from taxes, the amount of them may be deducted from the purchase-money, &c.; that he may have damages for failure to perform, and that the deed to Mitchell be declared to be void, &c.

The defendants all join in a demurrer to the bill and set forth a number of causes which, for clearness of reference, I state separately by number. They show for cause of demurrer :

"First. That no contract or agreement for the sale of the lands, tenements and hereditaments in said bill described, or any interest in or concerning them, or any memorandum or note thereof, was in writing signed by the parties in and by said bill sought to be charged therewith, or any or either of them, or by any other person thereunto by them or either of them lawfully authorized.

"Second. That it does not appear from said bill that John R. Foley, therein stated to have been the agent of the heirs-at-law of Benjamin B. Hamblin, deceased, was their agent to make a sale of the premises in said bill described or to make and sign a written contract or agreement or memorandum or note thereof in writing in behalf of said heirs.

"Third. That the alleged contract or agreement in said bill of complaint set forth does not purport to be signed by the person who in said bill is stated to have been the agent of the heirs-at-law of Benjamin B. Hamblin, deceased, but by some other person whose authority to sign the same is not set forth in said bill.

"Fourth. That the lands and premises described in the bill are not shown to be the same as those described in the contract set forth in the bill, and that the description in said alleged contract or agreement is too vague and indefinite to be capable of enforcement by this honoroble court."