Smith v. Farmer Type-Founding Co.

The plaintiff sues as executor and trustee under the will of Mrs. Gregg, deceased, for rent for March, 1896, of premises of which she died seised, and which by her, in writing, were leased to defendant’s assignors in her lifetime. Her will was probated in 1892, and letters testamentary then issued to plaintiff, and by the sixth clause of her will she devised and bequeathed to her executor (plaintiff) the residue of her estate, including the premises in question, with power to sell same, and to collect the rents thereof until sold, and directed that the fund realized from such sale and such rents, except $1,200, which was to be paid annually to two daughters, until so sold, be divided into two equal parts; one of which she devised and bequeathed to one of these daughters, Mrs. Hillyard, her heirs and assigns, forever, and the other part the plaintiff was directed to reinvest, and to pay the income thereof to the other of these daughters, Mrs. Gowing, during her life, and at her decease to pay the fund so reinvested to her (Mrs. Gowing's) two daughters, Claudine and Edith, share and share alike. By this clause of the will the plaintiff, during Mrs. Gowing’s life, had a power to sell in trust for the purpose of distribution and a trusteeship of Mrs. Gowing’s share. At the time that the rent sued for became due, he had failed to execute his power in trust by selling the property, and his trusteeship had been defeated by the death of Mrs. Gowing, who left, her surviving, her daughters, Claudine and Edith, both adults. These two granddaughters of the testatrix and their aunt, Mrs. Hillyard, had then the lawful right to defeat plaintiff’s power in trust-—power of sale—by electing to take the real property, the rent of which is herein sued for, and prevent its actual conversion into personalty ; and the proof at trial was that they so elected, and gave due notice of such election to both plaintiff and defendant before this rent became due, and which defendant refused to pay to plaintiff, contending that if Airs. Hillyard and the testatrix’s two granddaughters had lawful right to defeat plaintiff’s right to collect rent, and had so done by notice of election, then that he had no cause of action for this rent, and that payment to him would riot be a defense to an action brought by them for the same