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appointed from time to time until at the present the respondent Edwin C. Reybold is acting as trustee, etc. Of the three blind children John Reybold died at the age of 24 years, unmarried, and without issue, having left a will, under which complainant, his brother, is sole beneficiary. Elizabeth Reybold died at the age of 47 years, unmarried, and without issue, and intestate, leaving as her heirs at law, her blind brother, the complainant, and her brother Clayton B. Reybold. Complainant, the remaining blind child, is 50 years of age, and married, but so far without issue. The surviving children of the testator and the representatives of such as are deceased are made respondents to this bill.

H. H. Ward, for complainant. Bradford & Vandegrift, Thomas Davis, and William S. Hilles, for respondents.

WOLCOTT, Ch. Let the decree be entered as follows: And now, to wit, this 9th day of May, A. D. 1893, the above cause having come on to be heard before the chancellor, upon argument of counsel, and upon a mature consideration thereof, it appearing to the chancellor that of the three blind children of John Reybold, Sr., John Reybold, Jr., died at the age of twenty-four years, unmarried, and without issue, having willed his entire estate to George U. Reybold, said complainant, and that Elizabeth Reybold died at the age of forty-seven years, unmarried, without issue, and intestate, leaving as her only heirs at law George U. Reybold and Clayton B. Reybold, and that George U. Reybold hath attained the age of fifty years, and is the only survivor of said three blind children; that the estates of said three blind children in said bank stocks became, immediately upon the death of Philip Reybold, Sr., a vested estate, subject to be devested in favor of the survivors or survivor of said blind children, upon the death of any of them, under age and unmarried, or in favor of the children, or their representatives, of the said Philip Reybold, Sr., deceased, upon the death of all of said blind children under age, and without issue; and that, all of said blind children having survived to the age of twenty-one years and upwards, the said gifts over of said stock upon the happening of said events can now never take effect; and that at the time of the deaths of John Reybold and Elizabeth Reybold they owned their respective shares of stock by an absolute and indefeasible title; and that by virtue of the premises the said George U. Reybold is now entitled to have five-sixths of said bank stock and note, and said Clayton B. Reybold is entitled to have one-sixth of said bank stock and note; and it further appearing that the said Clayton B. Reybold is administrator of the estates of John Reybold, Jr., and Elizabeth Reybold, and as such is primarily entitled to have and to hold for distribution the shares of said bank stock and note to which the said John and Elizabeth died entitled; and it further appear

ing to the chancellor that the reasons for the creation of said trust by said testator, and for the further continuance of the same, have been now fully fulfilled, and have now failed, and that no ulterior facts and no reasons for the continuance of the said trust are suggested in the answer of any respondent in this case, and no such facts or reasons now appearing to the chancellor; and it further appearing that all persons and estates interested in the question proposed by said bill are before the court, and have filed answers, fully admitting the facts set forth in said bill, and submitting themselves to the decree of the chancellor: Now, therefore, it is ordered, adjudged, and decreed by the court that the said trust originally created of said Delaware City Bank stock be, and the same is hereby, terminated, and brought to an end; that the said Edwin C. Reybold, trustee, is ordered to file his account in this court within ten days from the date hereof, and thereupon to assign, transfer, and set over unto the said George U. Reybold an equal one-third of the said stock and note in his own right, and to the said Clayton B. Reybold, administrator of Elizabeth Reybold, deceased, an equal one-third of said stock and note, as administrator as aforesaid; and upon the assignment of said interests in said bank stock and note to the parties aforesaid it is hereby ordered, adjudged, and decreed that the said Edwin C. Reybold, trustee aforesaid, together with the sureties upon his bond, be fully discharged from all responsibility and liability under said trust; and it is further ordered, adjudged, and decreed that the costs of said bill, answers, and proceedings in this court thereunder be paid by said trustee before the filing of his account, as aforesaid, out of the income of said stock and note now in his hands; and the said costs are hereby taxed at the sum of $101.17.

In re JOURNEY'S ESTATE. (Court of Chancery of Delaware. Sept. Term, 1892.)

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WILLS ESTATES CONVERSION - VESTED RIGHTS OF HEIRS-USE AND OCCUPATION. 1. A provision in a will that real estate be sold, and the proceeds divided among testator's children, constitutes the fund produced by the sale of the property a pecuniary legacy.

2. A legacy to children of the testator, payable on the termination of a life estate in the property out of which the fund for legacy is to be created, becomes vested immediately on the death of the testator, the intervening life estate operating merely as a postponement of possession, and the children of each of the deceased children of the testator are entitled by right of representation to the share of said fund to which their parent would be entitled if living.

3. Under a provision in a will directing the sale of certain land, and the payment of the proceeds to his children, the legal title to the Îand descends to the heirs at law, and remains in them until a sale is made, and only a naked. power of sale passes to the executor, which is insufficient to enable him to maintain an action for use and occupation of the land.

4. Under Rev. Code, p. 527, c. 86, § 2, provid

ing that a tenant in common or a joint tenant or a co-parcener may maintain an action for use and occupation against his co-tenant, heirs at law to whom property descends previous to its being sold as directed by a testator may contract with each other for use and occupation, or maintain actions against each other therefor.

Petition by Sarah Ann Munday for construction of certain portions of the will of Moses Journey, deceased.

Benjamin Nields, for Sarah Ann Munday. Lewis C. Vandegrift, for John Journey.

WOLCOTT, Ch. Moses Journey was, in his lifetime, and at the time of his death, seised in his demesne as of fee of and in a certain farm or tract of land known as "Oak Hill," situated in Christiana hundred, Newcastle county, and state of Delaware; and that while so thereof seised he duly made and published his last will and testament, by item 2 of which he devised to his wife, Margaret Journey, said farm or tract of land during the term of her natural life, and at her death directed the same to be sold, and the proceeds thereof to be equally divided among his children, share and share alike. In said will he nominated and appointed Victor Du Pont, Esq., to be the executor thereof. That the said testator afterwards, to wit, in the month of March, A. D. 1879, departed this life, and left, to survive him, his widow. Margaret Journey, and six children, namely, John Journey, Henry Journey, George Journey, Moses Journey, William Journey, and Sarah Ann Munday. That the above-named William Journey, on.or about the 26th day of October, A. D. 1879, departed this life, leaving, to survive him, three children, namely, Emma Journey, William Journey, and Margaret Journey, now the wife of Samuel Chambers; all of said children being now over 21 years of age. That the above-named Moses Journey, the younger, on or about the 9th day of July, A. D. 1887, departed this life, leaving, to survive him, five children, namely, Mary Journey, now the wife of James H. Massey, and over the age of 21 years, and William Journey, Margaret Journey, Joseph Journey, and Edward Journey, all of whom are infants, and represented in this proceeding by guardians. That from and after the death of the said testator his said widow, the said Margaret Journey, held said farm or tract of land under said devise as tenant for life until her death, which occurred about the 14th day of October, A. D. 1890. That on the 19th day of October, A. D. 1891, upon the petition of all the parties in interest, it was ordered by the chancellor that the said lands and premises be sold at public vendue, and that the proceeds arising from the sale thereof, after deducting the necessary expenses, be equally divided among the children of said testator pursuant to said last will and testament, and to that end Benjamin Nields, Esq., was appointed trustee to make said sale as in said order directed. It was further ordered by the chancellor: That the said trustee should en

ter upon, hold, and manage said farm or tract of land, collect the rents, issues, and profits thereof from the time of the death of the said Margaret Journey until such time as the sale of said lands and premises should be made and confirmed, and should duly account for the same. That the return of the proceedings of said trustee under said order should be made at the next term of the court of chancery sitting in Newcastle county. That on the 29th day of March, A. D. 1892, the said trustee made return to this court that he did, on the 21st day of November, A. D. 1891, sell the said lands and premises to James Brown for the sum of $6,000, he being the highest and best bidder therefor, which said return and the sale therein set forth were proved and confirmed; and the purchase money, to wit, the sum of $6,000, having been paid to the said trustee, he was ordered by the chancellor to execute and deliver to the purchaser of the said premises a deed conveying to the said James Brown all the estate and interest of the said Moses Journey, the elder, at the time of his death, to and in the premises so sold. It was further ordered by the chancellor: That the balance of the purchase money, after deducting the cost and expenses of sale, to wit, the sum of $5,789.98, be deposited by the said trustee in the Farmers' Bank at Wilmington, to the order of this court, there to remain subject to the further order of the chancellor. That on the 25th day of March, A. D. 1891, the said John Journey, one of the children of the said testator, entered upon the said lands and premises, and occupied and used the same until the 25th day of March, A. D. 1892. It is contended by the other parties in interest that he, the said John Journey, entered into the possession of said lands and premises under an agreement between himself and them, made with the said Henry Journey and George Journey in their behalf, whereby he, the said John Journey, was to pay an annual rent of $250 for the use and occupation of said lands and premises for the year expiring on the 25th day of March, A. D. 1892. It is admitted by the said John Journey that he has not paid the said trustee the said rent, and he denies that he is liable to pay any rent. He further claims that the money which he expended while on said farm, and the work which he performed in the making and erecting of permanent improvements thereon, should be deducted from the said amount on deposit in the Farmers' Bank at Wilmington to the credit of this court, and the balance thereof distributed among the parties entitled under the will.

The first question arising under the will of the said testator is, what interest do the children of the deceased children of the testator take in the fund to be distributed? It is a well-settled rule in equity that land directed to be converted into money, or money into land, will be considered as that species of property into which it is directed to be converted. It is equally well settled that the beneficiaries un

der a will in which their interests arise from money or land ordered to be converted into one or the other take as legatees or devisees, according to the nature or quality of the property in its converted state or condition. Let us apply these equitable principles to the case in hand. The late Moses Journey, deceased, by item 2 of his last will and testament, after the death of his widow, ordered his farm or tract of land known as "Oak Hill" to be sold, and the proceeds thereof equally divided among his children, share and share alike. The only interest which they had under said will was in the proceeds of the sale made in pursuance of the authority contained in said item of said will. Therefore the share or interest of each of his children living at the time of his death in the fund to be produced by the sale of the farm was legally a pecuniary legacy. Was it vested or contingent? Clearly, it was not contingent, for the right to it vested immediately upon the death of the testator, since the conversion of the land into money in equity was considered complete at the moment of his decease. The title of each legatee to his or her share of the fund to be created by the sale of the land was absolutely free from any element of uncertainty. It was vested in interest, but not in possession. It was a present gift, the time for the enjoyment of which was deferred until the death of the tenant for life. The intervening life estate in the land only operated as a postponement of the time for the payment of the legacy. The uncertainty or contingency was, therefore, annexed to the period for payment only, and not to the corpus of the gift. The children, therefore, of each of the deceased children of the testator, are entitled, by right of representation, to the share of said fund to which their parent would be entitled if now living.

Another question arises upon the facts testified to at the hearing of this case in regard to the liability of Moses Journey to pay $250 for the use and occupation of said farm for the year commencing March 25, A. D. 1891, and ending March 25, A. D. 1892. I am of the opinion that the legal estate and title in and to said farm and tract of land between the death of the testator and the actual conversion of the same descended to the children of the said Moses Journey, the elder. The authority to make a sale of said lands and premises was a mere naked power, which carried with it no estate or title to the trustee or the person having in charge the execution of the will. This view is clearly sustained by the English authorities, and also by the case of Lockwood v. Stradley, 1 Del. Ch. 298; King v. Ferguson, 2 Nott & McC. 588; Warneford v. Thompson, 3 Ves. 515; 2 Sugd. Powers, 170, 171; Yates v. Compton, 2 P. Wms. 308; Hilton v. Kenworthy, 3 East, 557; Fletcher v. Ashburner, 1 Brown, Ch. 497; Kane v. Gott, 24 Wend. €60. Admitting the rule to be as enunciated in the cases referred to, it is very apparent that the heirs at law of the testator had the right

to contract with each other in respect to the lands and premises in question, and without any contract John Journey was liable to the other heirs or co-parceners upon an action on the case for use and occupation, under section 2, c. 86, p. 527, Rev. Code. Laying aside all the testimony in regard to the agreement between John Journey and Henry Journey and George Journey, he (John Journey) was and is liable to his co-tenants for the rental value of the farm for the year before referred to. It having been proven that the rental value of the farm for the year A. D. 1890 was fixed at $250, I am justified in the conclusion that that sum was a fair rent for the succeeding year, and that John Journey is liable to his co-tenants for the same. The permanent improvements which were made and erected on the farm I am of the opinion should be a credit on the rent account. In view of the meager testimony on that point, I feel constrained to fix the value of such permanent improvements according to the testimony of John Journey himself and the witnesses which he produced in behalf of his claim.

LAMBDEN et al. v. WEST et ux. (Court of Chancery of Delaware. March Term, 1895.)

CONTRACT OF EMPLOYMENT-DEVISE-CONDITIONS PRECEDENT AND SUBSEQUENTRIGHTS OF DEVISEE.

1. Under a contract, certain parties agreed to erect a sawmill on the land of another, and to keep it there until the timber large enough was sawed, and to saw 100,000 peach-crate patterns annually, or more, if they chose; and of these they were to receive one-half as compensation, but all other lumber was to be sawed at specified prices. The owner of the land was to furnish them a dwelling house, rent free, two timber carts and a mule to carry on the work, and enough timber for a mill house, which they were to erect at their own expense. Held no more than a simple hiring to cut and saw timber, and not a contract for the purchase or sale of timber, or any interest in land.

2. A provision that all timber on devised land should be worked in accordance with an existing contract, by which the testator has hired it to be cut and sawed, and that the proceeds should go to his heirs, is neither a condition precedent nor subsequent, annexed to the gift of the fee; the vesting thereof not being made to depend on performance or nonperformance of the contract, and nothing in the will intimating that devisee's estate in the land should be defeasible on the happening or not happening of any particular event.

3. A clause devising land limited the devisee's authority by subjecting the timber thereon to an existing contract with the devisor, by which he had hired it to be cut and sawed, and gave the proceeds of the contract to his heirs. Held, that the devisee's right to enter and use the land exclusively was perfect against all the world, except the parties hired to cut and saw the timber, and, as they refused to perform their contract, the timber belonged to the devisee, as the benefit intended for the heirs was conditional on performance of the contract.

Bill by Thomas S. and Harvey Lambden against Samuel B. and Mary J. West for an injunction.

A. Higgins, for complainants. C. W. Cullen, for respondents.

dren, to wit, the complainants, Thomas S.
Lambden and Harvey Lambden, and the de-
fendant Mary J. West, who intermarried with,
and is now the wife of, Samuel B. West, the
other defendant. That the said Robert Lamb-
den, being seised in fee simple in his lifetime,
and at the time of his death, of the tract of
land hereinafter described (being the same
tract mentioned in the said contract above
quoted), made and published his last will and
testament, bearing date the 10th day of April,
A. D. 1885, and which was duly proved and
allowed on the 29th day of April, A. D. 1885,
by the register of wills of said county, and
recorded in Will-Record Book P, No. 15, p.
112. Letters testamentary thereon were duly
granted to the said complainant Thomas
Lambden and the said defendant Samuel B.
West, the executors named in said will.
Items 4 and 15 of said will, being the only
parts involved in this controversy, are as fol-
lows: "Item 4th. I give and bequeath unto
my daughter Mary J. West, wife of Samuel
B. West, to her and to her heirs and assigns,
to have and to hold forever, a certain tract
of land, situated in Broad Creek hundred, Sus-
sex county; the same being all the land south
of the public road leading from the Big Mill
to the Little Mill, including all the land be-
tween the aforesaid mill streams, and con-
taining about one hundred and ninety acres
(190): provided, however, that all the timber
on the aforesaid 190 acres shall be worked as
per contract now existing, and the rising is-
sues therefrom shall be paid into my estate,
and be equally divided among my lawful
heirs." "Item 15th. I give and bequeath all
the rest, residue, and remainder of my per-
sonal property not heretofore disposed of un-
to my three children, viz. Thomas S. Lamb-
den, Harvey Lambden, and Mary J. West; the
same to be equally divided among them."
Prior to the death of the said Robert Lamb-
den, the testator, the said Samuel S. Gault and
Silas Gault, in pursuance of the said agree-
ment, erected a sawmill on the tract of land
in question, and proceeded to carry out the
terms of the said agreement during the re-
mainder of the said Robert Lambden's life,
and for a few months after his death, when,
on account of insolvency, they abandoned the
work, and utterly failed and refused to com-
plete the execution of the said agreement.
That in the month of January, A. D. 1889, the
said Mary J. West, under said item 4 of said
will, took possession of the said lands so de-
vised to her, and directed the said Samuel B.
West, her husband, to clear up said land,
with a view to putting the same under cul-
tivation. That on the 20th day of June, A.
D. 1889, the complainants, claiming the tim-
ber upon said land, under item 4 of said will,
as heirs at law of the said testator, filed a
bill setting forth substantially the above-stat-
ed facts, and praying for an injunction re-
straining the said defendants from cutting
the said timber; and thereupon a rule was is-

WOLCOTT, Ch. The facts in this case are substantially as follows: On the 20th day of October, A. D. 1883, Samuel H. Gault and Silas Gault, of Broad Creek hundred, Sussex county, state of Delaware, of the one part, and Robert Lambden, of the other part, made and executed a certain agreement in writing, as follows: "This agreement, made and concluded by and between Samuel H. Gault and Silas Gault, of Broad Creek hundred, Sussex county, and state of Delaware, of the first part, and Robert Lambden, of the same place, of the second part, witnesseth, that the said Samuel H. Gault and Silas Gault, for and in consideration of the stipulations hereinafter set forth, hath agreed to and with the said Robert Lambden, his heirs or assigns, to erect a steam sawmill on land of said Robert Lambden, on what is known as 'Ross Point,' lying between the Big and Little Melson's Mills, in Broad Creek hundred, and county aforesaid; and said mill to be kept at said location until all the timber large enough is sawed up. The said Gaults are to saw the timber into peachcrate patterns at the rate of one hundred thousand annually, or more, if they choose. They are to cut, haul, and saw said timber, and to have the one-half part of the same after it is sawed into patterns. All lumber sawed, not peach-box patterns, for said Lambden, they are to have, for what pine timber under one inch in thickness, sixteen cents per hundred feet, mill measure; all pine lumber sawed, except peach-box patterns, one inch in thickness, or over, twenty cents per hundred feet, mill measure; all white oak and hickory sawed, to have twenty-five cents per hundred leet. They are to saw all lumber in good, merchantable order, with as little waste as possible. The said Robert Lambden is to haul free of charge the said mill and machinery from its present position to the point where she is to be located on Ross Point as aforesaid; to furnish, also, free of charge, enough timber out of which said Gaults can saw lumber for the mill house; said mill house to be put up at the said Gaults' expense. The said Lambden is to furnish the other parties a dwelling house to live in, free of rent, during the time they let the mill remain on Ross Point, and while engaged in working said Lambden's timber. The said Robert Lambden is to furnish the said Gaults two timber carts and his Laura mule, to use free of charge during the time said Gaults are sawing his timber at Ross Point. Witness the hands and seals of the parties hereto this twentieth day of October, A. D. 1883. [Signed] Samuel H. Gault. [Seal.] [Signed] Silas T. Gault. [Seal.] [Signed] Robt. Lambden. [Seal.] Attest: [Signed] Thomas W. Ralph." That the said Robert Lambden departed this life on or about the 20th day of Apriì, A. D. 1885, leaving to survive him, as his heirs at law and next of kin, three chil-sued to show cause why a preliminary injunc

tion should not issue, returnable the 8th day of July, A. D. 1889, and an order was issued restraining them in the meantime, as prayed for. On the 8th day of July, A. D. 1889, the defendants executed a bond, with J. Gibson Cannon as surety, conditioned that the said Mary J. West should "keep a just and true account of all the timber that might be cut, converted, and sold by her, growing on the land devised to her as aforesaid, and pay the proceeds of the sale thereof to the executors of said deceased: provided, that the decree finally establishing the rights of the respective parties shall so direct, and that the said Mary J. West, her heirs, executors, or administrators, shall in all things perform and abide such decrees or orders as the chancellor may make; then the said bond to be void; otherwise, to be and remain in full force and virtue,"-whereupon the restraining order was discharged. On the 30th day of July, A. D. 1890, Mary J. West, one of the defendants, filed an answer, admitting to be true all the facts stated in the bill of complaint, with the additional allegation that Robert J. Lambden in his lifetime received the proceeds which arose from the said agreement with the said Gaults, up to the time of his death, and the proceeds which arose therefrom subsequent to his death passed into the hands of his executors.

The controversy in this case arises between the complainants and the defendant Mary J. West, under the provisional clause in item 4 of the said will, by reason of the abandonment by the Gaults of the contract therein referred to. It is proper, at the threshold of the consideration of this question, to eliminate therefrom the fact that the timber growing on the land devised was converted into money by Mary J. West, the devisee of the land, under the sanction of this court, and the same secured by a bond to await the adjudication of the rights of the parties. The conditions which existed at the time of the testator's death must, for the purposes of this case, be regarded as existing now, as the status of the parties under the will was fixed at the moment of his decease. This court cannot create a condition unauthorized by the will, whether intentional or otherwise, by which a certain result may be attained, compatible with either a supposed or real testamentary intent. It was insisted by the solicitors for the complainants that the contract between the testator and the Gaults operated as an equitable conversion of the timber growing on the land devised to Mary J. West, from the time of its execution. The determination of this question thus raised depends upon the purport and object of the contract. By that contract the Gaults covenanted with the testator to erect a sawmill on Ross Point, being on the lands devised in the said fourth item of the will to the said Mary J. West, and to keep the same there until all the timber large enough was sawed up, and to saw the said

timber into peach-crate patterns at the rate of 100,000 annually, or more if they chose. For this they were to receive one-half, after being sawed into such patterns. All lumber sawed, not being peach-box patterns, they were to saw for Lambden, the testator, at prices specified in the contract. It is manifest upon the reading of this contract that its effect is nothing more nor less than a simple hiring or employment of the Gaults by Lambden, the testator, to cut and saw the timber in question, to be paid for by him part in money and in part in kind. There is nothing whatever in its language to support the contention that it is a contract for purchase or sale of the timber, or any interest in the land.

It was further contended on the part of the complainants that the provision in the said fourth item of the will, by which the testator declared that the timber growing on the land devised to Mary J. West should be worked according to contract (referring to the agree ment with the Gaults), and bequeathed the proceeds arising therefrom to his heirs at law, was a condition precedent annexed to the gift of the fee in the land. This contention, however, must also fall, from the fact that this provision in the will is in reality neither a condition precedent nor subsequent, as regards the devise of the land to Mary J. West. The vesting of the fee in Mary J. West did not in any wise depend upon the performance or nonperformance of the agreement. It was absolutely free from any contingency whatever. Immediately upon the death of the testator her right in the land became definitely fixed or established. It is not a condition subsequent, because there is no intimation in the will that her estate in the land should be defeasible upon the happening or not hap pening of any particular event. The only condition contained in item 4 of the will relates exclusively to the bequest to the heirs at law of the issues arising from the contract in regard to the cutting of the timber. After devising the fee in the land to Mary J. West, the testator provides "that all the timber on the aforesaid 190 acres shall be worked as per contract now existing, and the rising issues therefrom shall be paid into my estate, and be equally divided among my lawful heirs." This language cannot be misunderstood. It is only the issues arising from the contract with the Gaults that he gives to his heirs at law. He does not give them the timber. Neither does he authorize the executors to sell the timber, and give them the proceeds of the sale thereof, They take no interest whatever in the timber, except in the particular mode designated in item 4 of the will; and no authority is conferred upon the executors to do any act concerning the timber, except to receive the issues arising from the contract, and to distribute the same among the heirs at law. The simple language employed by the testator to give to Mary J. West the fee in the land invested her with absolute

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