Lembeck v. Lembeck

The opinion of the court was delivered by Bergen J.

The bill of complaint was filed in this cause by the executors and trustees named in the last will and. testament of Henry Lembeck, deceased, and from a decree made in the court of chancery this appeal was taken. The decree should be affirmed, for the reasons set out in the opinion of former Chancellor Magie, in Lembeck v. Lembeck, 73 N. J. Eq. (3 Buch.) 427, so far as they are applicable, but in order to avoid any misconception that'may arise’ from the adoption of the opinion, which contains a conclusion not expressed in the decree, we consider it proper to state that we do not approve that portion of the opinion which expresses the view that under the will of Henry Lembeck, his executors have no power to sell the stock of the Lembeck & Betz Eagle Brewing Company, during the widowhood of testator’s widow.

The only judgment contained in the decree on this point is, “that the executors, unless they consider it advisable, need not sell or divide the stock of the testator in the Lembeck & Betz Eagle Brewing Company, until twenty-five years have elapsed after the decease of the testator.” The effect of this judgment and decree is that there is vested in the executors a discretionary power to sell the stock, which discretion need not, but may be, *850 exercised at any time Avithin the period of twenty-five jears, but it does not adjudge that the executors have the right of exercising such discretionary power during so much of the widoAvliood as may be included Avithin the twenty-five years. Thus, AAdiile the opinion beloAV, erroneously as we think, declares that no poAver of sale existed, during so much of the period as Avidowhood continued, the decree does not so adjudge, nor do the appellants, in their petition of appeal, claim that any point, on which instructions are sought, was not considered and determined, or that they are aggrieved because of any omission, and therefore the question of the power of sale during continuance of widowhood is not presented to us in the present state of the record. That part of the petition of appeal relating to the power of sale is confined to that portion of the decree which adjudges that if the power be exercised Avithin tAventy-five years all of the stock must be sold. We are of opinion that the stock may be sold during the AvidoAvhood of the testator’s widoAV, the proceeds to be held upon the same trusts as the stock, but this matter not being included in the decree, it is not subject to the present appeal. Without adjudging the question of the correctness of the construction of the testator’s aaoII, as declared in the opinion of the court beloAV on the question of the power of the executors to sell the stock during the AAridoAArhood of testator’s widow, because it is not included in the decree, we are of opinion that, for the reasons given by the chancello]’ in support of the decree appealed from, it-should be affirmed.

For affirmance — Tete ' Chancellor, Ci-iief-Justioe, Garrison, Savayze, Reed, Trenchard, Parker, Bergen, Voorhees, Mint urn, Bogert, Vredeneurgh, Vroom, Green, Gray, Dill — 16. For reversal — None.