The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1853-05-19
IMPORTANT WILL CASE.
supreme Court-Gcneral Term.

Roosevelt
10 motion to compel OF the purchasers at the sale
under the decree 10 partition to complete his
He objects to do SO on the ground OF defect OF title in
the parties to the suit James Amory whose will is the
subect of litigation, died the 18th OF February 1885,
He left real estate in the city Of New York consisting
mostly OF vacant lots, valued now 1T more than half
million. HIS representatives widow and seven
chidren. By his will the testator gave this whole net
widtw during her widowhood 4" to be applied by her
for her support and that Of the minor children and
to be received BY her. not in advance, but periodically
gard her, he declares that having the fullest conh-
dence in his wife, and wishing his children to feel
themselves much deper dent her as on himself he
authorizes her to dispose of the income In such pro-
portions ard manner her judgment and affections may
Direct On the death marriage Of his wido he gives
the personal estate in equal shares the children
vying him, and the issue surviving him of deceased chill
dItn according to their stock subject only to his wtos
tate 10 to be divided in shares among the children ana
grandchildren, as follows
death Of the child to the chids wife husband the
ease may be, until he she shall marry again 3D. AT
the death of the child and the termination of the In
terest title of his her wife or husband, he gives
the fee of the share ito the children OF such child abso
htelyn 4th In case the child should leave issue
surviving such fee given to the tesators right heirs
SS take
rents share, absolutely and in fee 9th. And in
child grandchld OF the testator should die under 81
leaving surviving his her share of the real
and estate to go to the brothers and sisters
any, and none to the testators right hsirs and next
This last provision it viii be seen has nothing to do with
ehld's share, mot grandchilds) Of the real estate
Az to grandchd it applied to both real and PERSONAL
But chlds share, that IS the share of child living at
the tesaors deceae far respected the real estate
was already provided for on the contingency OF his dying
without issue living at the time of his deceAse whether
under age over age In that event. the chds share
not to brothers and sisters Of the deceased but
whstandng these provisions giving the property direc
to the devees the testator the better as he says e
feet the object in view devises the estate to his EXECUTORS
and among them his widow, trustees - for the pur
poses of this w The sixty first section of the satute
Of trusts permits this mode of disposition under the demo
trustn at the time declaring that every such do
visee shall have legal estate in the lands against all
under tiem They will next authorize the trustees to
make leases buildings pay taxes, and discharge in
cumbIanees,, either out Of the income Of the real
estate, az they may deem best y or, if necessary
by sale Of part Of the real estate; also to re-
them to his said wife, and after her death
rsge then to pay sad personal estate and the
,a,d net annual rents &c. to and among his DEVISED or
ters now object to the title Defective the ground
that by the will in question contingent interests
atsd in favor Of possible persons not yet in being which
are not and cannot be bound by the decree under whose
provisions the sale made In order determine the
effect Of this win it win conduce to clearness to take
single share of the esaesay that of the testators SON
Samuel Amory-and see what interests created
attempted to be created In OF over it According to
ties, and now insisted on by ell correct in prn-
eiple TIE widow took valid legal estate for life
not necessary for the argument the next estate
to Samuel for his life il valid was q legal and
to his wife, should he leave ono q RS. 72s sec. 173
Now the Law says that successive estates life shall
not be limited, unless to persons "n being at the
ton thereof, and the wife whom Samuel may leave
may be person born after his fathers de.th and there
fore not in being at the creation of the estate this mita
ton ID contrary to law, and void 1t is also void for
other Reconnaissance remainder in fee limited it,
the law not permitting in such cases more than two
ed voidY says but upon the death Of the two
persons arst designated the remainder lit is enacte)
Ahan take effect in the same manner If other life
estate had been Created in other words if the third
life estate blotted out The remainder in ee then
mother, that is the termination of the two life
estates FIRST in order must take effect unless 1t be
undue number Of preceding life estates. This remainder
and his mother, is limited "to the chrildreu Of
ren issue and if not to the right heirs Of the tes
tator. Such q remainder, although according to the
authorities, . vested remainder in the children of
Samuel living is subject to open and let in after
born children and subject be defeated the death Of
be the ownership Il the dS
dren in being must at lea may, be shifted and var
ed by subsequent births and deaths Nor will this
tainty be removed till samueps death--t that period
hty have another set It suspends therefore, the power
Of alienation during his he-for till his death the
ship that Is the absolute ownership Is uncertain But
There yet remains however, another difficulty. In case
samuel should die, and leave child the absolute
ship Of the share by the terms of the will might t is
said although clearly error not then be fxed
Such child at that time, might be under twenty one and
might thereafter die under one without ISSUE in
which case the share by the WILL 1t said given over
10 not asceranabe till the event happens thus
mi 0f 6rst tall
But such suspension also in ec Of real estate
existed is allowed by law the statute expressly de-
eAse) may be created prior remainder in feee' in
other words that the absolute power of alienation in
In being ainory afterwards Striking out then the
comparatively uDimportant contingent provision for q
possible widow OF the SON. case anticipated as we have
serious difficulty in sustaining this will in all its lead
ing objects and purposes Those objects, expressed in
ordinary language may be stated as folowsThe widow,
long she remained unmarried, to have the
tire control and Of the income both Of the real and
Of the personal estate; and she entitled (bsing
the trusee to the actual possession and to the
receipts Of the rents and profits she must be deemed
to have legal estate Of the same quality and
duration. and subject to the conditions
her beneficial interest."-U R. s., 727, sec. AZ
The testator doubt intended this income to enable
her Lot only to support herself but provide for the
whole family. He further intended, however, that
between her and them lorg she continued q widow
her HMM other words, that she should, SUBJ
jet to that single condition be absolute during
her life or widowed. With this reservation in favor Of
the widow, he his whole personal estate to his chill
dIen land The issue Of deceased children IL any should
have died before hm)-livng ut his desease In cquyl
shares absolutev." As to the pers 1naty therefore,
there not only suspension Of rshp for more
than two lives but no suspension whatever, The mo-
ment the testator died, the widow and the children
(and the grandchildren If any whose parents were dead
became the absolute owners By uniting, they were,
in Law, competent to make absolutely any dispo-
sition Of beth capital and income which they saw t
Some OF these children grandchildren representing
previously deceased children it then perceived might
die under twenty without leaving ISSUE and If course
before they could by law exercise the posa In
that event. the tetaor being advised and correctly that
1t competent for him to do 80, provided that the
share Of the deceased mnor should to his brothers
and sisters hany and il left then to the next
Of kin Of the testator BY this provision the interest
ownership Of the minor although nominaly absolute, be-
came deeable and until he arrived OF age died. the
ownership whatever it might be in nams, not abso
solnte in fact in law As 10 the minors shares there
FORE the absolute nership Of each was suspended
during his minority and consequently might be suspended
for one life But the law even in the case of personality,
riCd. No difficulty, therefore exihta and none