#### Charles A. Hamlin, as Administrator, with the Will Annexed of Lyman Stevens, Deceased, Plaintiff, *v.*Lyman A. Stevens et al., Defendants.

(Supreme Court, Onondaga Special Term,

August, 1900.)

1. Contract to give a nephew a child’s share.

An alleged contract, *by*the terms of which a testator agreed to give a child’s share in his estate to his nephew, provided the latter would come and live with him, must be clearly established.

2. Will — Nephew not included in *“*children.”

A residuary devise and bequest to a testator’s “ children ”, as remaindermen, does not include a nephew.

3. Remainder — Vesting.

Where such a clause, after directing the residuary estate to be administered for the benefit of the testator’s wife for life, provides that at her decease the residue shall be equally divided between “ our children or their heirs ”, children who survive the testator take a remainder which vests immediately upon his death, enjoyment being postponed until the death of their mother.

This action was brought to obtain a construction of certain clauses in the will of said Lyman' Stevens, deceased, By amendment of the original pleadings there was brought in the defendant Lyman A. Stevens, who claims that if he shall be excluded from sharing in the estate of the deceased under the terms of the residuary clause of his will, that then he shall have specific performance of an alleged contract of adoption of him by the testator, under which he was to share in the latter’s estate. There have also been brought in certain judgment creditors, and the receiver of Grace Loomis, one of the testator’s children.

Homer *&*Waldo Weston, for plaintiff.

Thomas K. Smith and John W. Reynolds, for defendant Lyman A. Stevens.

Charles G. Baldwin, for defendants Julia E. Stevens and others.

*435William Nottingham, for defendant Commercial Bank.

B. T. Benedict, for defendant Stephenson.

J. L. Cheney, for defendant First National Bank.

Hiscock, J.

The testator Lyman Stevens died several years ago, leaving a considerable real and personal estate, and a last will and testament, whereby he appointed his wife, Julia E. Stevens, and his son-in-law, one Loomis, executors. Subsequently said executors accounted and resigned, and plaintiff was appointed in their places as administrator with the will annexed. Said testator left him surviving his wife and as his only heirs-at-law and next of kin, two daughters, Grace E. Loomis and Mary S. Hamlin, each of whom had children; also the defendant Lyman A. Stevens, a nephew, who alleges that he had been informally adopted by his uncle under a contract between the latter and his parents whereby he was to share equally with the aforesaid daughters in any estate the testator might leave.

The will, after making certain specific bequests including one of $6,000 to said nephew, contains the following residuary clause of which alone interpretation and construction is sought herein, viz.: “ As to the entire residue of my estate both real and personal my executors are instructed and required to administer, execute and keep employed all that remains of my estate for the use, benefit and comfort of my beloved wife, Julia E. Stevens, during her natural life or as long as she may live or survive me, and power is herewith given or conferred as far as it can be legally given and conferred to transact and carry on any business, to sell real estate and to do all other acts connected with my estate or relating thereto, and at the decease of my wife, the residue remaining of my estate shall be divided equally between our children or their heirs.”

I will take up first the claims of the defendant Lyman A. Stevens. There are many facts in the history of his relations with his uncle, which are either undisputed or unquestionably established by the evidence, and some claimed by him have not in my judgment been proven.

In 1868, he was a child of about ten years, living in a small *436place in Ohio, with his parents, who were small farmers of very modest means and having other children. The deceased was his father’s brother, living in the city of Syracuse, a man apparently of prominence and certainly very well to do. He had two daughters and no son, and no reasonable prospects of having one. He visited Ohio with his wife in the fall of 1868, was pleased with the nephew, and then had some talk with the parents about taking ¡him home. No plan for doing this was perfected then, but the ¡next year the nephew came to live with them. He was taken into ¡the testator’s family and thenceforth treated as a son and a member thereof. He was clothed, boarded, supported and kept in school until he was nineteen years old. When he became older he helped his uncle about his business matters, and in some of them acted as his representative and spokesman. He was referred to by his uncle in terms of high regard and as his *“*son ” or the *“*only son he had.” His uncle gave him what small sums of money he asked for, and after a certain age a regular allowance or wages.

The defendant’s mother claims that in January, 1869, the testator came a second time to the home and agreed with the father, in substance that if defendant would come and live with him until he was twenty-one, he, the testator, would clothe, support and educate him, and at his death leave his estate to him, share and share alike with his own children; and that it was pursuant to that arrangement that defendant went to live with his uncle. This is the only direct evidence in support of this contract. Another witness testified that long subsequently testator told him that he intended to dispose of his estate in favor of the defendant to the above extent, but I may briefly dismiss the evidence of this witness by saying I do not credit it.

The testator’s wife contradicts the testimony of defendant’s mother by her evidence that her husband was not in Ohio at the time in question. A letter written by the father of defendant just before the latter went to live with his uncle, and just after the agreement or promise in question is claimed to have been made, seems to me inconsistent and out of tune with the provision for defendant’s sharing in his uncle’s estate now claimed. Some letters in which the testator is claimed to have acknowledged his obligation to make his nephew one of his legatees have disappeared, although others written by him at about the same time are produced.

*437Upon the evidence and facts thus outlined, I am unwilling to find as a fact that any bargain was made by the deceased with the parents of the nephew whereby the former agreed or intended or undertook to agree that the latter should have a certain definite share or proportion of his estate, or whereby he bound or undertook or intended to bind himself to make the latter one of his testamentary beneficiaries.

An agreement of that kind, assuming it could be made as urged by defendant, might be a pretty serious or embarrassing one. No one could tell when it would go into effect or how much it would mean. There was no practical way at least to hold the parents or the boy up to their part of it if they should see fit at any time to withdraw from its performance. It meant taking away a large fraction of the uncle’s estate from those who were his natural heirs.

Such a contract ought to be clearly and satisfactorily established, and I do not find that that has been done in this case.

I think it much more reasonable to assume that the parents of the defendant believed that his chances and opportunities in life would be greatly improved by going to live with his uncle; that possessed of comparatively little means, and having other children to rear and educate, they felt that by letting their son go he would secure additional advantages which would compensate them and him for the change; that his uncle would practically make him his own son, and that without any definite undertaking or promise at some time in some way would give him some of his property, as in fact he did do.

This conclusion upon the question of fact presented renders it unnecessary to discuss the various questions of law which have been presented upon this subject.

Neither do I think the defendant can be regarded as one of the “ children ” made residuary legatees in the clause already quoted. That word, as I am well aware, has a somewhat elastic meaning in wills, but no law has been called to my attention warranting a decision that it includes the nephew in this case. Furthermore, the testator by a prior clause had already made a specific bequest in favor of the defendant as his nephew, indicating very clearly that in making his will he intended to regard and describe him as such, and not as one of his children.

I pass now to the construction of the residuary clause about the *438meaning of which, in the end there does not seem to be much difference of opinion amongst the people interested.

The first question is as to where the title to the property vested upon the death of the testator. I have no doubt that the remainder, subject to the life interest of the wife, vested in the two daughters upon the decease of the testator, the enjoyment thereof being postponed until the death of the life- beneficiary; that the words “or their heirs ” after the word “ children ” in the residuary bequest do not change this construction, both children having been alive at the testator’s decease. Nelson v. Russell, 135 N. Y. 137.

Some question might be raised under the residuary clause as to where the title to testator’s estate lodged during the life of his wife; whether under the language used it was vested in his executors under a trust to administer the same for the benefit of his wife during her life, or whether the title to- the entire estate vested in his children subject only to a power upon the part of his executors to do certain things for the benefit of his wife. That question, however, is not important under the facts of this case, and is not pressed. In any event the children at least took a vested remainder subject to a provision for their mother for life.

No question is made but that the executors had power under the will to resort to the principal or *corpus*of the estate if necessary to furnish the wife with a suitable support. I think none could well be made, and the estate of the children is subject to diminution in this manner and to this extent.

Neither is any question raised but that the power to carry out the provisions of the will, and to execute conveyances of the real estate passed to. plaintiff as administrator with the will annexed.

In accordance with the views herein expressed, findings and a decree may be prepared and submitted, the question of costs being at that time considered.

Ordered accordingly.