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Clemens v. Clemens.

cery, in Missouri. His subsequent death without ever assuming the trust, or claiming a right to act, would make valid that disclaimer, so far as it became impossible for him to act, and vested all the estate in the surviving trustee. He was bound by the decree in chancery, and the death of Collier having made him (the survivor) sole trustee, the estate vested in him, and the cestuis que trust would be bound by that decree.

I have examined this will with some care, and the opinion submitted of Judge Bonney, and have come to a conclusion, but with much hesitation, contrary to that expressed by him. Nearly all of the principal provisions in the will are conceded to be void. These lots are included in the devise to trustees. The objects of that trust, as to charity, as to accumulation, as to the limitation of more than two lives, and some of the other provisions, are clearly void, under our laws, and could not be enforced here. It seems to me that these provisions are so connected with the whole trust, and dependent upon their connection with the residue, that no part of the trust could be carried out without working injustice and giving to a portion of the family a larger share of the estate than was intended, if the whole trust could have been sustained.

To hold the devises to some of the children good, while the rest of the will is declared void, would be to increase largely the portions to some of the children, and decrease the portions to others. This does not seem to be consistent with the general intent of the testator; and his objects would be much better carried out by declaring the whole void than by sustaining only small portions of the instrument.

These views render it hardly necessary to examine the questions as to the existence of the will in Missouri. I cannot see, however, in what way that will can be proved in this State. After a lapse of thirty years, it can hardly be supposed such an attempt would be made. The hand

VOL. LX.

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Clemens v. Clemens.

writing cannot be proved without the production of the original; and it seems to be at least improbable that a will, under such circumstances, could in any way be admitted to probate.

The proceedings in the partition suit would bar these parties, also, from any further claim under the will; unless there are such irregularities in the proceedings as would make the judgment or decree therein rendered void. The only objection requiring examination is as to the nonappearance of the infant defendants by guardian. The proceedings were in accordance with the act of 1831, which allowed of proceedings by publication against infant defendants who were non-resident. In such cases it was not necessary to appoint a guardian, unless they appeared.

The act of 1833 I do not think applicable to cases of non-residents; but it provided for cases where in fant defendants were served and did not appear. In such cases, the court could, on application, appoint guardians for them. Even if otherwise, it is but an irregularity, which should have been moved for much earlier than this day. The children have for some years been of age.

A motion made now would be denied, on account of the delay.

Upon the consideration I have been able to give to this case, I am of the opinion there is no valid objection to the title.

Motion granted.

NEW YORK SPECIAL TERM, April 80, 1867. Ingraham, Justice.)

John ORSER, late Sheriff, &c., vs. THE GLENVILLE WOOLEN

COMPANY and others.

The 33d section of the Code, which provides that in case of the death of a sole

plaintiff, the action may be continued in the name of his representatives or successor in interest, does not apply to a case where a sheriff sues as such, and dies during the term at which the action is tried, and his deputy is

also dead. Such a case is provided for, however, by the Revised Statutes, which direct

that “where an action is authorized or directed by law to be brought in the name of a public officer, his death or removal shall not abate the suit, but the same may be continued by his successor; who shall be substituted by the court, and a suggestion of such substitution shall be entered on the record.” (3 R. S. 670, 5th ed.)

M

OTION to continue action, after the death of the plaintiff.

Brown, Hall f Vanderpoel, for the motion.

INGRAHAM, J. The plaintiff in this case died during the term at which the action was tried, and judgment was entered as of the first day of the term. A motion is now made to continue the action.

By the 33d section of the Code it is provided that, in case of the death of a sole plaintiff, the action may be continued in the name of his representatives or successor in interest. The sheriff, as such, has no representative, except it be his deputy. In the present case, the deputy, also, is dead.

It may also be doubted whether the claimant, for whose benefit the action is brought, can be called the successor in interest. He does not succeed to any interest of the sheriff, after his death. His rights remain the same after the death of the sheriff, as they were before, and are not in any way to be considered as belonging to him as successor in interest.

I am of the opinion that tnis section does not provide

Silsbee v. Smith.

the remedy for the difficulty. There is, however, a provision in the Revised Statutes which meets this case. (3 R. S. 670, 5th ed.) “Where an action is authorized or directed by law to be brought in the name of a public officer, his death or removal shall not abate the suit, but the same may be continued by his successor, who shall be substituted by the court, and a suggestion of such substitution shall be entered on the record."

This applies to such a case as the present, and the plaintiff's attorney may take an order to continue the action in the name of the successsor in office of the plaintiff.

[New YORK SPECIAL Term, September 30, 1871. Ingraham, Justice.)

SILSBEE and others vs. SMITH and others.

In order to obtain an account of the personal estate which came to the hands

of an administratrix-she being dead-her personal representatives are in

dispensable parties. Persons in possession of land sold under an order of the surrogate, to pay the

testator's debts, are interested in having the representatives of the deceased administratrix made parties, to the end that it may be established, if possible, that debts of the testator were unpaid, at the time the order of the sur

rogate to sell was made. In a bill to redeem, an offer to pay whatever may be found due upon the

mortgage, or a tender of the amount which the plaintiff concedas to be due, are indispensable. Without one or the other of these, the complaint does not set forth a cause of action.

A

PPEAL from a judgment rendered at a special term, allowing a demurrer to the complaint.

By the Court, MULLIN, P. J. There is but a single count in this complaint, and upon the facts alleged in it, the plaintiffs demand, as relief, that the sales of real estate owned by the testator, Ziba W. Cogswell, at the time of his death, and devised by him to his widow for life, made

Silsbee v. Smith,

by the surrogate, on the petition of his widow, who was appointed administratrix with the will annexed, in order to pay the testator's debts, should be set aside as irregular and void ; that the sales of portions of said real estate, on foreclosure of mortgages given thereon by the testator, should also be set aside for irregularity; and that certain other mortgages be set aside; that deeds of portions of the lands sold, as aforesaid, be set aside as fraudulent; that an accounting by the administratrix with the will annexed be ordered; that an account of the rents and profits received by the widow of the testator during her life, be also directed, as well as of the assets which came into her hands as administratrix. And that an account of the rents and profits since the death of Mr. Cogswell, be also taken, to the end, as I infer, that the real estate which descended to the heirs on the death of the widow, may be relieved from the lien of the debts owing by the testator in his lifetime. The plaintiffs do not, in terms, ask to redeem the lands from the liens remaining unpaid thereon ; but such was doubtless the intention of the plaintiffs' counsel. But there is no offer to pay such liens, should anything remain unpaid after applying the amount arising from the sale of the personal estate, and from the income of the real.

1st. In order to obtain an account of the personal estate which came into the hands of the administratrix, she being dead, her personal representatives are indispensable parties. Those defendants who are in possession of the land sold by the surrogate, to pay the testator's debts, are interested in having Mr. Cogswell's representatives made parties, to the end that it may be established, if it can be, that debts of the testator were unpaid at the time the order of the surrogate to sell was made.

2d. An offer to pay whatever may be found due upon the mortgage, was an indispensable averment in a bill to redeem, or a tender of an amount which the plaintiffs

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