
    Henrey C. Stenneck, executor of Anna Altmann, deceased, v. Charles Kolb et al.
    [Decided June 24th, 1920.]
    1. A bequest by a. wife to a. husband lapses if he predeceases her, and the testator dies intestate as to ¡property so bequeathed.
    2. A devise of a residuum of real estate ordered to> be sold by a wife to a husband whio .predeceased her fa-i-ls, ,and there is a reconversion of the devise even though thie ¿and may have been previously sold, anid thte proceeds are to be regarded as land, and disposed of accordingly — following- the blood.
    
      8. Where an executor was directed to retain a sum from the sale of real property and pay the interest thereon to- A, the interest begins to r.un from the time the sale might reasonably be made.
    4. Where a will directs the sale- of real estate, the rents of this real estate from .the death of the testator until the actual sale go ilo the parties-who take the proceeds.
    On bill for construction of will.
    
      Mr. Matthew J. Taclcella, for the complainant.
    
      Mr. Tlanian Besson, for the defendants, Charles Kolb and Leopold Kolb.
   Lewis, V. C.

The testatrix, Anna Altmann, died in March, 1919. Her husband died about six weeks previously. The only heirs-at-law ■ and next of kin of the testatrix were two sons by a former marriage, namely, Charles Kolb and Leopold Kolb. In her last will and testament reference is made to her two brothers, Franz Ko-lh and Joseph Kolb, hut it is averred that they were not brothers of the testatrix, but brothers-in-law, being brothers of her first husband..

The significant portions of the will are as follows:

“Foitbth. — * * * All the -rest -and remainder of my personal property, except the -money in bank as ¡hereinafter meni'liioned, I do give rarnd bequeath imito my husband, Baisilius Altmann, for his own use absolutely and forever.
“Fifth. — I do hereby instruct and authorize my executors to sell my house .and property, known as No. 24 Van. Dyke Street, Wall-ington, N. ,T., and my real estate at Mlatudiem, N. J., as isoiom as the same can hie disposed of, but for a price mot less than'the coste thereof, which in. the case of the Wa-Hingbon property is $1800.00', and of the Mietuchen property is $750.00. For the purpose of making -such sale, my exeout'ors are hereby authorized laud empowered to isel'I ittbie igaiid .property either at public or private sale, .and to give good -and sufficient instruments of conveyance for the said property, in order to convey to the purchasers thereof -a title .sufficient iat law.
“Sixth. — Out of the proceeds of the sale of my real estate as above mentioned, my executors are directed to pay the following bequests, viz. — to my’ hustiand, Ba'silius Altmann, the 'sum of Seveu hundred ($700) doilars for his own use absolutely and forever; the sum of Fivf hundred ($500) ctoliars to my son, Leopold, whoa ¡be .arrives at the age of fo-rity years, -and until my said -son, Leoip-old, arrives .at (tllie said age of forty years, -lie sball draw itke interest of iblie- said sum of five hundred dloll'a-rs, for his -own use absolutely;" and to- my ,son, -Oblarles, who; because of the sorrow and trouble wibi-eh he has oau-sed me during my ,lifetime, and because- he is a spendthrift -and 1-azy, does n-o-t deserve -any further com-sideirati’pn from me, the sum of One dollar.”

By the death of the husband, Basilins Altmann, before the testatrix, the bequests to him lapsed, and our statute, in this respect, does not prevent the lapsing, the husband not being included in its provisions. 4 Comp. Stat. p. 5866 § 22.

The question that arises, therefore, is what disposition shall be made of the property of the testatrix, which otherwise would have gone to. the husband had he not predeceased the testatrix.

As will he seen, the wall first deals with a portion of the personal propertjq the residuum of which, after the .payment of certain specific legacies,, went to the husband.

It is the well-settled law of this state, that this residuary clause, having lapsed, and there being no- other provision in the will for its disposition in such event, the testatrix died intestate as to that portion of her estate, and it will follow the intestate laws, and he divided equally between her two sons, Leopold and Charles.

The will also provided for the payment of $700 to the husband out of the proceeds of the sale of the real estate of the testatrix.

It is to be observed, that, although the testatrix directed and authorized the sale of her real property, yet such sale was only to be made in case a certain price could be obtained, which might have some significance upon the question of whether or not this provision of the will produced an equitable conversion of the real estate, hut however that may be, the law is well settled that where the purpose of the devise fails, then there is a reconversion, and even though the land may have been previously sold, the proceeds are to be regarded as land, and disposed of accordingly — following the blood.

Whether, therefore, tire lapsed bequest of $700 to the husband is to- he regarded as realty or personalty, its devolution would be the same, in this instance, because the two sons, Leopold and Charles Kolb, are the heirs-at-law as well as the next of kin of the testatrix, and they consequently will take. Roy et al. v. Monroe et al., 47 N. J. Eq. 356; Molineaux v. Raynolds et al., 55 N. J. Eq. 187.

The result is, that the sons, Leopold and Charles, also take the lapsed bequest of $700.

The "will also provides that out of the proceeds of the real property the executor is to retain the sum of $500, and pay the income thereof to Leopold Kolb until he arrives at the age of forty years, when he is to receive the principal sum.

The executor is in doubt as to whether interest should be paid on this sum as of the date of the death of the testatrix, or only after the sale of the real property, which is the source, of the fund.

The rule is stated tó be in 4-0 Cyc. 2102, as follows:

'‘WdMii'e legados aire directed t© be piaSd ©nit iof tibie paioceeds of tbe sale of property, and no time is directed by will for making tibe sale, tbe weight of tihe aratibority is tibait tibe legacies bear interest from tbe time when, the sale might reasonably ibave been made.”

In view of the provision of the will prohibiting the sale of real estate' of the testatrix, unless a certain price can be obtained, it is clear that no sale can reasonably be made until such price is obtained. Of course, reasonable efforts should be made to effect, a sale of the property in accordance with the terms of the will. If this be done then interest on the fund of $500 will not start to. run until the sale has been accomplished and the proceeds axe available for the purpose indicated.

The executor is also in doubt as to. who is entitled to receive the rents collected from the real property ‘until a sale is consummated.

“When the will directs the sale of real estate, the rents of 'the estate between the death of the testator and- the actual sale go to the parties who take the proceeds.” Wright v. Church, Hoffm. (N. Y.) 202; Ingrem v. Mackey, 5 Redf. Surr. (N. Y.) 357; 9 Cyc. 850.

At the time of the death of Basilius Altmann, the husband of the testatrix, he was insured in the Traveler’s Insurance Company in the sum of $500. The insurance company has paid this money to the complainant as executor of the estate of Anna Altmann. There are no children of the marriage between Anna Altmann and Basilius Altmann. This forms part of the estate of the testatrix, and, having vested in her ‘prior to her death, it forms part of her residuary personal estate, and now passes to her two sons, Leopold and Charles, as her next of ldn, under the intestate laws, as heretofore indicated.

Finally, the costs of administration, and counsel fees obviously should be paid out of the estate in the hands of the executor.

A decree will be advised in accordance with these views.  