DeHaven v. Sherman
DeHaven v. Sherman
Opinion of the Court
delivered the opinion of the Court:
Yery clearly, the payments which the will directs the trustee to make to the widow and the children are not a rent charge. 1 Thomas’ Coke, 349, 143 b; 3 Greenleaf’s Cruise’s Digest, 71, 72; 3 Kent’s Com. (12th ed.) 595, *496. They are simply annuities, to be paid from the annual rents contemplated to accrue from the leasing of the Sherman House. 1 Broom & Hadley’s Com. (Ward’s notes,) 459, *55; 1 Thomas’ Coke, 352, *144 b; 3 Kent’s Com. (12th ed.) 595. It could not have been intended by the testator that the payment of these annuities are a charge against the copus of the estate, because that might have defeated the power expressly given to the trustee to borrow money to rebuild, and secure the loan by mortgage on the property, and his expressed intention that his trustee “shall have, hold and manage the Sherman House property entire and undivided,” and appropriate the rents, issues and profits in the manner therein before directed, during the natural life of his wife and children, and until the death of the survivor of them. The rule is, that unless it appears it was intended by the testator to charge the payment of the annuities upon the corpus of the estate, they can only be enforced against the trustee, personally, so far as he has received the rents. The-fee in the realty, whether for life or for years, can not be sold for their payment. (Irwin v. Wollpert, 128 Ill. 527; Delaney v. Van Aulen, 84 N. Y. 16; Nudd v. Powers, 136 Mass. 276; Baker v. Baker, 6 H. L. 616.) Whatever, therefore, may, in other respects, be the effect of the deed of assignment of Francis T. Sherman, the deed of the assignee in bankruptcy to Hugh A. White, and the deed of Hugh A. White to De Haven, it is impossible that they can have the effect of passing a freehold in the Sherman House property to De Haven. It hence follows, that under the 89th section of the Practice act (2 Starr & Curtis, 1842,) the appeal should have been to the Appellate Court for the First District, instead of to this court.
The appeal is accordingly dismissed at appellant’s costs, and leave is given to her, if she shall so desire, to withdraw record, abstracts and briefs, for the purpose of filing them in the Appellate Court. Appga, dismissed^
Reference
- Full Case Name
- Augusta W. DeHaven v. Francis T. Sherman
- Cited By
- 20 cases
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- Syllabus
- 1. Winns—creating an annuity—as distinguished from a rent charge. Certain real estate was devised to a trustee, to rent the same, to receive and collect the rents thereof, with power to borrow money to rebuild in case of loss by fire, and mortgage the same to secure the loan, and the will directed that after the payment of all the taxes, etc., the trustee, out of the rents, should pay to the testator’s widow $6000 per annum, and to each of his children $3000 per annum, and apply so much of the residue as should be necessary, to the payment of the indebtedness incurred to repair or rebuild the premises, and after such indebtedness should be fully paid, that the trustee pay the widow one-third of the remaining portion of the fund and divide the balance between the children, and at the widow’s death divide the whole of such remainder among the children, equally; and further directed that the trustee should keep the property entire and undivided, and appropriate the rents and profits in the manner before stated, dru’ing the life of the widow and children, and until the death of the last survivor of them, and until the youngest child of any and all his said children should become of age: Held, that the payments directed to be made to the widow and children were not rent charges, but simply annuities, to be paid from the annual rents to accrue from the property. 2. Unless it appears that it was the intention of the testator to charge the payment of the annuities upon the corpus of the estate, they can only be enforced against the trustee personally, so far as he has received the rents; and the fee in the realty, whether for life or for years, can not be sold for their payment. 3. AiteaIi—whether a freehold involved—construction of a will—as to whether an annuity out of rents, or a rent charge. In the case of an annuity created by will, payable out of the annual rents of an estate, no freehold passes to the annuitant.