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CASES

ADJUDGED IN

THE COURT OF CHANCERY

OF THE STATE OF NEW JERSEY,

FEBRUARY TERM, 1864.

HENRY W. GREEN, ESQ., CHANCELLOR.

DAVID WELLER and WIFE vs. JONATHAN P. ROLASON and others, legatees of John Rolason, deceased, the heirs of Jonathan A. Park, deceased, and the heirs of Nathan Park, deceased.

1. Where it is clearly the intention of the parties to convey the whole estate, equity will decree a conveyance of the fee according to the intention of the parties, notwithstanding the want of words of inheritance in the grant.

2. If a trustee dies without executing the trust vested in him, the trust survives, and equity will decree its due execution.

3. Where a testator, by his will, has directed his executor to purchase real estate, and hold it subject to certain trusts in said will named, but the deed therefor contains no declaration of the trust, the executor will, nevertheless, be declared to have been seized of the land as trustee for the purposes specified in the will.

4. One of several cestuis que trust cannot, by purchasing the legal title to the land which forms the subject of the trust, defeat the equitable title VOL. II.

B

17 13

47 219

Weller v. Rolason et al.

of the other cestuis que trust thereto, when such purchase was made with a knowledge of their equity. The estate in his hands will be held subject to the purposes of the trust,

5. Where two or more persons having an interest in lands, claim under an imperfect title, and one of them buys in the outstanding title, such purchase will enure to the common benefit, upon contribution made to repay the purchase money.

6. But such purchaser can claim no contribution for the price paid for the legal title, from those interested with him in the equitable estate, when the title purchased by him in no wise enures to the benefit of the estate.

John Rolason, late of the township of Oxford, in the county of Warren, by his will, bearing date on the twentyfirst of June, 1830, among other things, devised and directed that the remainder of his property should be sold for cash, and the remainder of the money applied to purchase a house and lot suitable for the family; the house and lot to be his wife's during her widowhood, and after her death, the property to be sold and equally divided among the children of

the testator.

A house and lot was purchased by the executor, which was occupied by the widow of the testator during her life. After the death of the widow, Jonathan P. Rolason, one of the heirs-at-law and devisees of the testator, claiming that the deed to the executor conveyed an estate only for his life, purchased of part of the heirs of the grantee their interest in the land, and claims title thereto in his own right.

The complainants seek-First. To reform and amend the deed to the executor so as to conform to the agreement for the purchase, by inserting therein words of inheritance, so as to vest in the grantee an estate in fee simple, with a declaration that the same is held upon the trusts declared by the will of the said testator, for the benefit of his children.

Secondly. That the parties having the legal title be decreed to hold the same for the benefit of the devisees of the said testator, according to the provisions of his will.

Thirdly. That the land be sold under the directions of the

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