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of the island, and there the line terminates. That line, therefore, includes nothing, but it is immediately followed by these words, "on the North they are bounded by the bay and on the South by the sea or maine ocean." The premises described in the patent, therefore, are bounded on the west by South Hampton, on the north by the bay, and on the south by the Atlantic ocean. What body of water is intended to be designated by the word "bay," as the northern boundary of the premises, is not very apparent. It seenis to apply only to the sound, as that is the body of water on the north and the only water that extends along the whole of the north side. The word can scarcely apply to Ft. Pond bay, for that only extends for a short distance. Whatever it may designate, however, it carries the grant to the water only, and the water is the north boundary. In respect to Ft. Pond bay, its south shore is the north bound of the premises. In respect to the contention of the plain. tiffs that nothing else can pass under the word "haven,” the answer is that it is not essential that anything should so pass. There may have been no quarries, and, if none, then nothing passed by virtue of that word. Much testimony was offered upon the trial to show that Ft. Pond bay was a good harbor, but it is not so secured by the circumjacent land as to be entitled to that desig. nation. Like every lee shore, it is a secure and quiet place for vessels when the wind blows from the land, but when the wind is from the sound there is no protection. Upon careful consideration, we find no errors, and our conclusion is that the verdict was properly directed for the defendants, and the exceptions should be overruled, and judgment entered upon the verdict for the defendants, with costs. All concur.
MURPHY v. CAREY et al. (Supreme Court, General Term, Second Department. July 28, 1893.) ACTION ON NOTE-DIRECTING VERDICT-CONFLICTING EVIDENCE.
In an action on notes made by defendant C. to the order of defendant G., and indorsed by him, the consideration of which was an old note made by C. to 0., there being, on the one hand, evidence that the old note belonged to plaintiff', and that it was surrendered to C. at the time the notes sued ou were given, and, on the other hand, evidence that O. owned the note at that time, and was to deliver it to C. when the indorsed notes were delivered, and that this was not done, it was error to direct a verdict for plaintiff: Appeal from circuit court, Kings county.
Action by John G. Murphy against James F. Carey and James F. Gillen. Verdict was directed for plaintiff, and defendants appeal. Reversed.
Argued before BARNARD, P. J., and DYKMAN and PRATT, JJ.
BARNARD, P. J. This action is brought to recover the amount due upon three promissory notes, all made by the defendant Carey to the order of defendant Gillen, and indorsed by him, all dated May 25, 1891, and maturing in three, six, and nine months from date. The defendants admit the making and indorsement of the notes ás alleged, but the answer avers that at the time the notes were given to the plaintiff the defendant Carey was not indebted to him except in the sum of about $2,000, which has been fully paid by Carey. The answer does not plead the fact actually tried. It was proven that, on the day the notes in suit were given, there was a settlement of a claim in an action pending in favor of plaintiff against Carey alone. In this settlement, $2,100 was found to be due the plaintiff, and the parties, when they agreed upon the amount, also agreed to give time in which to pay this sum due, in certain monthly payments, about $200 per month,commencing June 1, 1891, and ending March 1, 1892. Presumably, these payments have been made; but upon the same day the settlement was made the notes in the present action were given, as has been stated, and they were given for an entirely different pur. pose.
One Dugan owned a quarry property. He conveyed to one O'Brien, a brother-in-law of Murphy. He conveyed to Murphy & Co. Upon this transfer, Carey gave his note to O'Brien for $5,000, at plaintiff's request, as a "personal contribution” to Murphy, whatever that expression may mean. The notes of $750 each were given on this $5,000 note, and that was admittedly outside of the amount covered by the stipulation. The defendant Carey states that these $750 notes, with four others, were given to wipe out the $5,000 held by O'Brien, and that this large note was to be exchanged for the small ones, which has not been done. There seems to be no doubt but that the $5,000 note was the considera. tion of the notes sued upon. There is proof tending to show that plaintiff owned the $5,000 note at the settlement, and even tending to show that it was given up to Carey on the occasion. There is also proof tending to show that O'Brien owned the note at the time, and that the same was to be delivered up to defendant when the new indorsed notes were delivered. This was not done, and a case was made for the jury. The judgment should be reversed, and a new trial granted; costs to abide event. All concur.
In re POTTER'S ESTATE.
In re TRUSLOW et al. (Supreme Court, General Term, Second Department. July 28, 1893.) 1. Wills—CONSTRUCTION-DESCRIPTION OF LEGATEES.
Testator, who had three children, divided an estate into three equal parts, giving the use of a share to each child, and provided that on the death of either of his children leaving issue the issue take equally the share of the dead parent, but that in case a child died leaving no issue the capital of the share held for the use of the one so dying be divided among “my surviving childien.” Held, that the word "children" was used in its primary sense, and that on the death of one of the three children without issue the issue of another deceased child could not share with the third surviving child.
2. SAME-ESTATE BEQUEATHED.
Testator directed that a certain sum be set apart for the use of his widow during her life, and that the residue of his estate be divided into three equal parts for the use of his three children during their lives, and on the death of his widow the portion of the trust fund which had been set apart for her use was to be divided into three equal parts, one of which was to be set apart for the use of each child, and the income given to the child for whom it was designated; and, in case a child died leaving no issue surviving him, the "capital of the share held for the use of the one so dying" should be distributed among the surviving children. Held, that the capital of the share," etc., referred to one-third of the entire estate, and included the portion set apart for the use of the widow. Appeal from surrogate's court, Kings county.
Application by James L. Truslow and Gilbert Potter, as surviving executors and trustees under the will of Gilbert Potter, deceased, to settle their account, etc. From a decree construing the will, Gilbert Potter appeals. Reversed.
Argued before BARNARD, P.J., and DYKMAN and PRATT, JJ. Jackson & Burr, (J. A. Burr, Jr., of counsel,) for appellant. Charles W. Truslow, for respondents.
DYKMAN, J. This is an appeal from the decree of the surrogate of Kings county, construing the last will and testament of Gilbert Potter, deceased, upon the judicial settlement of the accounts of the execators. The testator died on the 18th of March, 1883, leaving a last will and testament, dated April 4, 1877, and a codicil thereto, dated July 8, 1881. The codicil requires no consideration upon this appeal. When the will was made the testator had three children, Mary Elizabeth Beard, Josephine Curtis, and Gilbert Potter. Mrs. Beard then had two children, Josephine and Anna. Mrs. Curtis had no children, and never had any. The testator left surviving him his widow, Phoebe Potter, and his three children and two grandchildren named above. He left a large estate, consisting of both real and personal property. Mary Elizabeth Beard, the daughter of the testator, died September 22, 1884, leaving her two children surviving. Mrs. Josephine Curtis died February 4, 1891, leaving no children. Phoebe Potter, the wife, died June 17, 1891. Gilbert Potter still lives. The first and second clauses of the will give specific articles to the wife and son of the testator. By the third clause of the will the testator gave to the executors the real property on Bedford avenue and Morton street in the city of Brook. lyn, in trust to receive the rents and profits, and pay therefrom the expenses of the property, and pay the residue to the wife of the testator during her natural life, with a power of sale in the lifetime of the wife with her consent; in the event of a sale the proceeds to be invested, and the income therefrom paid to the widow during her natural life, and at her decease the fund was to fall into the residue, subject to the trust created in relation thereto. The fourth clause of the will gave to the executors all the residue of the testator's property, in trust, to sell and convey the same in their discretion, collect the proceeds, and pay the debts and funeral and
testamentary expenses; and upon the further trust to invest out of the proceeds $120,000, and apply the income to the use of the wife during her natural life. Also upon the further trust to divide the remainder of such residue into three equal parts, and set apart and designate one of such shares for the use of each of the three children of the testator, and apply the income arising from each of such parts to the use of the children for whom it was designated during his or her natural life, with a proviso in relation to the entry into business of the son, Gilbert, which is unimportant here. Upon the yet further trust to divide the sum of $120,000 into three equal parts at the death of the wife, and set apart one of such parts to each of the three children, and apply the income arising from each of such parts to the use of the child for whom it was designated, during his or her natural life. Upon the death of either of the children of the testator leaving issue, the executors were authorized and di. rected to pay to such issue equally the capital of the share held by them in trust for the use of the parent so dying; but, if either of the children of the testator should die leaving no surviving issue, then the executors were directed to pay the capital of the share held for such parent so dying to the surviving children of the tes. tator equally. Thus far we have given a summary of the provisions of the will primarily applicable to the disposition of the estate of the testator. Mrs. Beard is dead, but she left two children, and they took their mother's share, under the clause of the will which says: “Upon the death of either of my children leaving issue I authorize, empower, and direct my executors and trustees to pay to such issue equally the capital of the share held by them in trust for the use of the parent so dying." It is equally plain that the onethird of the estate which was set apart for the use of the son, Gilbert, must be retained by the executors for his use during his natural life.
The question, therefore, left for solution is whether the executors are to pay over to the son, Gilbert, the share of the estate held by them for Mrs. Curtis, or whether that one-third is to be divided between him and Josephine O. B. Campfield and Anna H. Beard, the two children of Mrs. Beard, deceased. The answer to that question is to be deduced by the following clause in the will: "If either of my said children shall die, and leave no issue surviving them, I direct my said executors to pay, divide, and distribute the capital of the share held for the use of the one so dying to and among my surviving children equally.” If the word "children" is employed here in its primary sense, and is to be allowed its natural and ordinary significance, then the construction of this clause is simple, and its meaning and intention is plain. By the rule of construction in this state applicable here, the term "children" is to be deemed to signify offspring of the first degree of the ancestor, unless it appears there were no persons in existence who would answer the description of "children" in the primary sense of the word at the time of making the will, or that there might be none at the time or in the event contemplated by the
testator, or where the testator has clearly shown by the use of the word or in other portions of the will that he employed the word "children" as synonymous with “descendants” or “issue,” or to designate another class of persons. Mowatt v. Carow, 7 Paige, 328; Palmer v. Horn, 84 N. Y. 516. We have here a plain and unambiguous sentence, constructed in language which suggests no intention to use any words in an alternative sense, or to allow the term “children” a substitutional import. The scheme of the will is easy of comprehension. It gives to the executors the real property in Bedford and Morton streets, in trust for the use of the wife during her natural life. Upon her death it or its proceeds sink into the residue of the estate. Out of the residue $120,000 was to be invested for the use of the wife, and that even was to be augmented by the proceeds of the residence property if it was sold. The remainder was to be divided into three parts or shares, one of which was to be set apart and designated for the use of each of the three children of the testator, and the incoine from each share was to be applied to the use of the child for whom it had been set apart, and who had been designated as its owner. At the decease of the wife, the $120,000, with the proceeds of the sale of the residence property, was to be divided into three equal parts. Thus was made a complete disposition of the property for the natural lives of all the beneficiaries under the will, and when the testator commenced the final disposition of his property the first thing he did upon that subject was to give a direction to the executors, upon the death of either of his children leaving issue, to pay to such issue equally the capital of the share held by them in trust for the use of the parent so dying. Then he made a provision that, if either of his children died leaving no issue surviving, then his executors should divide and distribute the capital of the share so held for the use of the one so dying among the surviving children equally. Events have now so transpired that the situation is thus: Mrs. Beard left children surviving her, who take the third of the estate. At the time of the death of Mrs. Curtis the fund set apart for the use of the wife had not sunk into the residue, and therefore we may as well inquire here what fund the executors held in trust for Mrs. Curtis at that time. The answer to that inquiry depends upon the signification to be attached to the phrase, "the capital of the share held for the use of the one so dying," which is not free from obscurity. It must be borne in mind that the entire estate was given to the executors in trust, with the direction to make two divisions of the same in the first instance. In the first place, the residence property, or its proceeds, and $120,000, were to be set apart for the use of the wife during her natural life; and the residue was to be divided into three equal parts, for the use of the three children during their natural lives. Then, at a subsequent time, upon the death of the wife, the portion of the trust fund which had been set apart for her use was to be divided into three equal parts, one of which was to be set apart for the rise of each of the three children, and the income arising