On appeal from the Superior Court, Appellate Division.
For affirmance -- Chief Justice Vanderbilt, and Justices Case, Heher, Oliphant, Wachenfeld and Burling. For reversal -- None. The opinion of the court was delivered by Case, J.
We are called upon to construe a will and to consider the equitable doctrine of conversion.
Charles W. Simonds died August 28, 1920, leaving a last will which provided as follows in its third, fourth and final clauses:
"THIRD: I give, devise and bequeath the use and income of all the rest residue and remainder of my estate both real and personal unto my beloved wife Margaret Simonds, together with so much of the principal as may be necessary for her support and maintenance, for and during the term of her natural life.
"FOURTH: Upon the death of my said wife Margaret Simonds, I order and direct my executors hereinafter named or the survivors of them, to sell and dispose of all my real estate then remaining and to divide all my then remaining estate both real and personal as follows:
"To my son Grover Simonds, a one-sixth part thereof, to my daughter Ellie Forshay, a one-sixth part thereof, to my son Joseph Simonds a one-sixth part thereof, to my daughter Louise Simonds, a one-sixth part thereof, to my daughter Alice Anderson a one-sixth part thereof and to Mary M. Simonds, widow of my son Edgar Simonds, the remaining one-sixth part thereof for the support, education and maintenance of her son Charles Edgar Simonds.
"LASTLY: I nominate and appoint my son Grover Simonds, my daughter Ellie Forshay, and my daughter-in-law Mary M. Simonds, executors of this my last will and testament with full power and authority to sell and dispose of any or all of my real estate, excepting however the property above specifically devised to the children of my deceased brother, John Simonds, together with the power to mortgage the same or any part thereof, should the same be necessary for the proper support and maintenance of my said wife."
His real estate consisted of only two parcels, one in the State of New York, which he specifically devised in the second paragraph of his will; the other, his farm, the subject of this
litigation. The widow, Margaret Simonds, died November 24, 1939. The executors have not yet exercised their power of sale.
Joseph Simonds, a son, given a one-sixth part in the fourth paragraph, was sued and subjected to a judgment. The judgment creditor caused execution to issue and levy to be made thereunder upon what was assumed to be Joseph's undivided one-sixth interest in the lands. The levy proceeded to sheriff's sale on December 15, 1928, at which the plaintiff, Jennie D. Kuiken, bought and pursuant to which she received and recorded a deed. On April 14, 1947, Kuiken filed this bill in Chancery seeking a partition of the land or, if that should prove impracticable, a sale of the land and a division of the proceeds, and also seeking a discovery and an accounting by the executors with respect to the rents, issues and profits arising from the lands. The defendants resisted upon the ground that the will converted the land into personalty; and one of the defendants sought by counterclaim to set aside the levy and sheriff's deed given thereunder and to obtain an injunction against the claiming of any right or interest thereunder. We find no reference in the briefs or in the opinion below to the counterclaim as such, and, therefore, we assume that it is not before us as a distinct pleading.
The case at the trial level was decided in the Superior Court, Chancery Division, against the plaintiff, and upon appeal that determination was affirmed by the Appellate Division. The findings as they come to us are that there was an equitable conversion of the real estate, that the partition should be denied and the prayer for an accounting should fall therewith, that upon a sale by the executors the ...