WHARF - Continued.

PAGE.

owners, by the acceptance of the letters patent, thereby dedicate the docks
and so much of the uplands as is necessary for that purpose to the use of
all people engaged in general public commerce on the river, subject to
proper regulations and the payment of a reasonable compensation.

If the abutting owners assume to execute to a steamboat company a lease
of the exclusive privilege of using such docks, the court will not lend its
aid to an attempt by the lessee to exclude another steamboat corporation
from landing at the docks in question. Id.

3. Effect of the omission from letters patent of conditions contained in
prior letters.] The fact that letters patent, subsequently granted by the
State of New York to the abutting owners, contained no statement of the
purposes or conditions for, and upon which, the prior letters were granted,
will not be construed as intended to relieve the abutting owners from the
obligations created by the acceptance of the prior letters patent. Id.

WIDOW-Right of, to dower.

See DOWER.

-

WILL-Direction to the executors to carry on the testator's business with his
property and estate for a period of lives, with a provision that, until the testa-
tor's children each attained the age of twenty-five years, a portion of the "profits
and gains" of the business should be applied to their maintenance and support
and that the surplus should be used as part of the working capital of the busi-
ness the direction relates only to that part of the estate used in the business
at the time of the testator's death the testator's children cannot prevent the
business from being continued – the will is invalid so far as it directs an accu-
mulation after the children attain their majority — action by the testator's chil-
dren to procure an adjudication that the will is invalid in this respect after the
executors have acted on the assumption that it was valid when such action is
not barred by the Statute of Limitations or by judgments rendered upon account-
ings by the executors the testator's children held to be severally chargeable
with advancements made to them, but not with moneys expended for their edu-
cation, maintenance and support - the executors are not in the position they
would be were they stockholders of a corporation having the fund.] 1. A tes-
tator, by his will, provided as follows: "Second. I direct that my executors
hereinafter named, or such of those named as shall qualify as such, their
survivors or successors, shall prosecute and carry on with my estate and
property, my present business under the firm name of Garner & Co., for
and during the lifetime of my wife, Mary Marcellite, and my daughter
Florence, and the survivors of them, and that all profits and gains arising
from said business shall, after the sum set apart for the support of my
wife and children, as hereinafter provided, are deducted, be added to and
form a part of the working capital of my estate."

-

He further directed his executors to pay to his widow out of the income
of his estate during her lifetime the sum of $70,000 a year, and out of the
surplus income of his estate, to support, educate and maintain his children,
"until they severally attain the age of twenty-five years. Up to such
age such executors may advance any child or children such moderate sum
or sums of money as, in their best judgment, will benefit or promote the
happiness or comfort of such child or children, such advances to be charged
against them. As each child attains the age of twenty-five years, said exec-
utors shall pay over to such child or children the full proportionate sum per
annum, to which she or he may be entitled, from out of the profits of said
business, after my wife's amount is paid her."

The testator and his wife died in 1876, leaving them surviving three
children, who were born respectively in 1868, 1869 and 1874. The executors
continued the testator's business as directed by the will, and each year,
until all of the children attained the age of twenty-five years, added a large
surplus of profits to the capital of the business. The youngest child attained
her majority in 1895.

In 1899 the surviving executor brought an action for a settlement of his
accounts and for leave to resign. The children of the testator served
answers in 1899 and 1900, asking for a construction of the will and that they
each be declared entitled to one-third of the surplus income accruing from

WILL- Continued.

PAGE.

the time that they became twenty-one years of age, and which had been
added to the capital of the estate.

Held, that the direction that "all profits and gains arising from said
business shall, after the sum set apart for the support of my wife and
children, as hereinafter provided, are deducted, be added to and form a
part of the working capital of my estate," was equivalent to a direction for
the accumulation of the rents and profits and of the interest, income and
profits of the real and personal estate of the testator;

That, so far as the will directed an accumulation of the profits and gains
arising from said business, after any child became of age, the will was
invalid;

That the retention of the excess of profits and gains contemplated by the
will was based, not upon a scheme for the maintenance and development
of the business, but for the purpose of making provision for the testator's
children;

That the fact that the money to be accumulated was the product of a con-
tinuance of the business was not material;

That the continuance of the business was not optional with the bene-
ficiaries, and that consequently the accumulation of the income provided
for could not be said to have been made with their consent;

That adjudications by the court upon previous accountings made by the
executors, to the effect that the general power to carry on the business
existed in the executors, and that one of the testator's daughters having
reached the age of twenty five years was entitled to one-third of the profits
and gains, did not preclude the court, in the present action, from passing
upon the question as to the validity, after a child attained majority, of the
provision directing the accumulation of the profits and gains, it appearing
that such question was not raised in the former actions and that certain of
the infant defendants in the present action were not parties to the former
actions;

That, whether the executors should be regarded as trustees of an express
trust or as executors charged with trust duties, the right of the testator's
children to the relief sought in the present action was not barred by the
Statute of Limitations;

That the direction of the testator that the executors continue the business
created a trust, and that the fund resulting therefrom was a trust fund;

That the executors could not be said, because they had made a mistaken
interpretion of the law, to have repudiated or violated the trust;

That the testator presumably only authorized a continuance of the busi-
ness by the use therein of that part of his estate so employed at the time of
his death;

That, consequently, the children were entitled to the proceeds of the sale
of real estate, the use of which the testator had given to his widow during
her life;

That the respective shares of the several children should not be severally
charged with the money devoted to the support, education and maintenance
of each, but the total sum so expended was chargeable against the profits of
the business;

That each child should be charged with the specific moneys advanced to
such child;

That the executors were not in the same position that they would have
been as holders of stock in a corporation to which the testator had transferred
the fund which was in fact given in trust to them. THORN v. DE BRETEUIL. 405

2. Gift of the residuary estate, in which advancements are to be treated
as part thereof and charged against the several residuary legatees to whom they
were made-effect of the insolvency of a residuary legatee to whom more than
his share has been advanced.] The will of a testator provided as follows:

"Third. All the rest, residue and remainder of my estate shall be by my
executors divided into four parts or shares, to be ascertained as follows: In
determining the amount of my estate they shall charge the several persons
hereinafter in this paragraph named with the sums set against their respec-
tive names, as so much money by me heretofore paid to or advanced to each
thereof respectively:

WILL- Continued.

44

INDEX.

Henry Whitmore, eleven thousand dollars.
Ella Whitmore, one thousand dollars.

Herbert W. Weld, seven hundred dollars.

'Harry B. Weld, four hundred dollars.

"Helen R. Weld (now Munson), three hundred dollars.

"Arthur Wisner Weld, three hundred dollars."

715

PAGE.

The clause in question stated that the testator's son, Charles Whitmore,
was indebted to him in the sum of $2,136.35, and also for moneys, the exact
amount of which was unknown, which had been advanced to a firm of which
the said Charles Whitmore was a member, and which was then in the hands
of an assignee for the benefit of creditors.

"And I direct my executors to charge Charles
The will further provided:
Whitmore with any balance that may remain unpaid of my claim against
said firm, after applying thereon all dividends that may be received on
account thereof in reduction thereof. The sum so to be charged (if any) to
be in addition to the matters aforesaid.

And my executors, after adding to the sum of the estate which shall
come into their hands all of the sums so to be charged, as aforesaid, as assets,
shall divide the resulting sum by four, and the quotient so derived shall be
taken and regarded as the one-fourth share of my estate, and the shares so
ascertained shall be paid out by my executors as follows:

"To my son Henry Whitmore one of said one-fourth shares, less the sum
of eleven thousand dollars.

"To Carrie Whitmore, wife of my son Charles Whitmore, one of the said
one-fourth shares, less the sum so to be charged to him, as aforesaid.

"To my daughter Ella Whitmore one of said one-fourth shares, less the
sum of one thousand dollars.

"The remaining one-fourth share my executors shall divide into four
equal parts, and they shall pay one thereof, less seven hundred dollars, to
my grandson Herbert W. Weld; and one part thereof, less four hundred
dollars, to my grandson Harry B. Weld; and one part thereof, less three
hundred dollars, to my granddaughter Helen R. Weld (now Munson); and
one part thereof, less three hundred dollars, to my grandson Arthur Wisner
Weld."

The Weld children referred to in the last clause were the issue of the
testator's deceased daughter, Emma Whitmore Weld.

By a codicil to the will the testator revoked the bequest to Carrie Whit-
more of one-fourth of the estate, and bequeathed the same to the children
of Charles Whitmore, share and share alike.

"Second. The charges to be made against
The codicil further provided:
Charles Whitmore for moneys loaned and advanced him, and to the firm
of Charles Whitmore & Company, as directed by said will, shall be charged
and treated as though they had been made to said children of Charles Whit-
more, for the purpose of determining their share in my estate; meaning
hereby that advances made to said Charles Whitmore, including loans to said
firm, shall be treated and regarded only as advances on account of the one-
-quarter part of my estate so given to said children."

The amount of the residuary estate was $22,155.97. The total indebted-
ness of Charles Whitmore to the estate was found to be $17,479.36. The
aggregate of all the advancements was $31,179.36.

Held, that, for the purpose of distribution, advancements made to the
testator's respective children or their representatives should be treated as
debts owing to the estate and as constituting part of the assets thereof and
be charged against the shale to which each would be entitled;

That the total amount of the advancements added to the residuary estate,
making in all $53,335.33, should be divided into four equal parts, and that
each of such parts, to wit, $13,333.83, would represent the share to which
each of the testator's four children, or their representatives, would be
entitled, less any advancements made to such beneficiary;

That, as it appeared that Charles Whitmore had been advanced $4,145.53 in
excess of the one-fourth part of the estate, his children were not entitled
to receive any portion of the residuary estate;

That, as such excess of $4,145.53 was a worthless asset in the hands
of the executors, Charles Whitmore being insolvent, one-third of the loss
arising on account of such worthless asset should be deducted from each

WILL- Continued.

PAGE.

of the other three shares, leaving $11,951.99 as the share of the estate to
which, less the advancements made to them, the testator's son Henry and
his daughter Ella and the Weld children were each entitled.

MATTER OF MERRITT.

...

3. A direction that several shares of the residue be deposited in bank and
that a specified sum be paid therefrom to designated beneficiaries for life with
provision over, sustained the surplus income, if any, passes to the persons
presumptively entitled to the next eventual estate.] The will of a testator pro-
vided as follows:

-

The

"I give, devise and bequeath all the residue of my real and personal
estate, owned by me, or that may hereafter come into my possession, to my
executrix and my executors, with full power to dispose of the same.
proceeds thereof are to be paid to my children, my two grand-daughters
(children of my deceased daughter Emily Cordelia Werrey), and to my
adopted daughter Angeline Julia (wife of the Rev. Charles N. Gleason), to
be divided into ten (10) equal shares, and paid to them in the following
manner: One share to each of my eight (8) children, May Eliza (wife of John
M. Hyde), John Augustus, Maria Jane (widow of Edward Werrey), James
Henry, Harriet Doremus, Samuel Booth, Sarah Antoinette (wife of John
W. Boylston), and Thomas Edward. One share to be equally divided
between my two grandchildren, Maria Antoinette Werrey and Emily Ger-
rude (wife of Joseph W. Graham), both daughters of my deceased daughter
Emily Cordelia Werrey, and one share to my adopted daughter Angeline

Julia Gleason.

* *

*

"The shares of my two daughters, Mary Eliza and Harriet Dorcmus, and
of my adopted daughter Angeline Julia, after making the deductions afore-
said, shall be placed by my executrix and my executors, in separate deposits
for each of them, in such Savings Banks or other institutions, as they, my
executrix and my executors, may approve of, that pay interest on such
deposits, making arrangements with such banks or institution by which
Mary Eliza, Harriet Doremus, or her son Harry Whittingham Reeves, and
Angeline Julia or her daughter Mabel Winifred, can draw on said deposits
as hereafter mentioned. Said Mary Eliza, Harriet Doremus and Angeline
Julia are each to draw Forty (40) Dollars per month and no more on their
respective shares of funds so deposited, commencing on or about the first of
the third month after my decease, and until their decease, if there is* suffi-
cient funds deposited to do so.

"If, in the case of Mary Eliza, her share should not be exhausted at her
decease, the amount so unexhausted shall be equally divided between all
the children then living of my deceased grandson, John B. Snook, Jr.

"If, in the case of Harriet Doremus, her share should not be exhausted
at her decease, her son, if living, may draw on said unexhausted funds, the
sum of Twenty (20) Dollars per month, and no more shall be drawn on said
unexhausted sum until his decease. If said share of funds are* then unex-
hausted, they shall be equally divided between all the children then living
of my deceased grandson, John B. Snook, Jr.

"If, in the case of my adopted daughter, Angeline Julia, her share should
not be exhausted at her decease, her daughter Mabel, if living, may draw
on said unexhausted funds the sum of Twenty (20) Dollars per month, and
no more, until her decease; if said share of funds are then unexhausted.
they shall be equally divided between all the children then living of my
deceased grandson, John B. Snook, Jr.

"Should Mary Eliza, Harriet Doremus, or her son Harry, or Angeline Julia,
or her daughter Mabel, die before the respective shares are exhausted, the
funeral expenses of each shall be paid from the respective shares, not to
exceed One hundred and seventy-five (175) Dollars for each funeral.

The share of my estate for each, Mary Eliza, Harriet Doremus and
Angeline Julia, are* to be deposited as aforesaid in trust, so they and children
as named, can draw monthly the sums named and no more, at the times
named, and are* to be paid to the children of my deceased grandson, John
B. Snook, Jr., as follows: That for Mary Eliza, share at her decease and
funeral expenses paid, that for Harriet Doremus, when she and her son are

179

WILL- Continued.

PAGE.

deceased and funeral expenses paid for both, that for Angeline Julia, when
she and her daughter are both deceased and funeral expenses for both paid.'

Held, that if the income of the shares given to the testator's daughters Mary
Eliza and Harriet Doremus and to his adopted daughter Angeline Julia
amounted to more than forty dollars a month, the provisions of the will for
the accumulation of such surplus would be unlawful;

That the provisions of the will, limiting the income to be received by
such two daughters and by the adopted daughter to forty dollars a month,
should be upheld, and that the surplus income, if any, would pass to the
ersons presumptively entitled to the next eventual estate pursuant to psec-
ion 53 of the Real Property Law (Laws of 1896, chap. 547).

4. Payment under a guaranty of the indebtedness of a partner to his
firm-construction of the will of the guarantor, giving a share of her estate
to such partner, by him and the other parties in interest, charging such pay-
ments against his share when conclusive as against his trustee in bank-
ruptcy.] The special partnership of John Osborn, Son & Co. was com-
posed of Frank, Charles, William and Robert A. Osborn, general partners,
and Mary C. Osborn, their mother, a special partner. The said Mary C.
Osborn executed an instrument in writing, by which she guaranteed the
payment of any indebtedness which Charles, William or Robert A. Osborn
should incur to the firm, such guaranty to extend " only to the extent of
their separate interest they may have in any estate at my death in accord-
ance with my will, which I intend to execute at the earliest moment
possible."

She subsequently executed a will by which she provided for an equal dis-
tribution of her property among her children and the descendants of a
deceased son. She directed in such will that each of my children and
their issue shall be charged to the extent of the interest that they may respec-
tively have in my estate at the time of my death (which was the interest less
the amount advanced under the guaranty agreement) with whatever sums of
money shall appear by my books to have been advanced to them subse-
quently to June 1st, 1890, by me, or by the firm of John Osborn, Son & Co.,
at my request, together with the interest thereon, to the time of my death."
The said Mary C. Osborn died December 28, 1891, and it was then found
that Robert A. Osborn had overdrawn his account with the firm to the
extent of $22,050.65, which amount was, under the terms of Mrs. Osborn's
guaranty, charged against her capital in the firm and credited to the account
of Robert A. Osborn on the books of the firm. December 31, 1891, Robert
A. Osborn made a sworn declaration to the effect that he owed the estate
of his mother such sum of $22,050.65.

The surviving partners continued the firm business after their mother's
death, but failed in May, 1895. While the firm was still solvent, Robert A.
Osborn recognized the existence of his indebtedness to the estate before men-
tioned and made payments on account thereof. In 1902 Robert A. Osborn,
while acting as executor of the estate of Mary C. Osborn, made a sworn
inventory of the assets, in which he included the declaration sworn to by
him in 1891, to the effect that he owed the estate of his mother the sum of
$22,050.65.

Held, that Robert A. Osborn and the other parties interested in the estate of
Mary C. Osborn, having, at a time when the rights of creditors were not
involved, united in construing the will of Mary C. Osborn as providing that
the amount of Robert A. Osborn's indebtedness to the firm should be charged
against his share of the estate, a trustee in bankruptcy of the estate of Robert
A. Osborn had no standing, several years afterwards, to maintain an action
to compel an accounting of the estate of the said Mary C. Osborn on the
theory that it was the intention of the testatrix that, in determining the
amount of Robert A. Osborn's share in the estate, the moneys paid in satis-
faction of his indebtedness to the firm should be disregarded.

5.

HUNT v. OSBORN...

303

... 464

When it is the proper construction.] Semble, that the construction
acted upon by the children of the testatrix was the correct one. Id.

6. Gift of a residuary estate in trust-authority of the executor to
sell stocks and bonds included in the residuary estate.] The will of a testator