The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1854-07-14

IUs mSgrony or THB WILL Oy ywhfA BneWl~
bsstsiun by Hem Judge Woodruff.


susss1ed Of Ruth 8. Harrison agsf IHossss =. Al
ks.- This suit (which is one Of q number pending
between same partess) was hronht TO recover .
sons and mortgage lot SiovoO nsas ~ Frances y.
leonard street, bought Of Mrs. Harrison; also, Q
bond and note for u 500 made by one Van Dyke
and others, There was also the interest on the bond
which was paid htoCeurt, amounting TO about $4,000,
also depending ON sbe litigation. The complaint
aAegtd that the testatrfx, Mrs.. Harrison, died on
ocsoher !, haas, leaving last VIII and testament
wherein she devised her property to her children,
MAKING her husband, the late John Harrison, her
sxecutor. That snch viii was made in pursuance
q power reserved for that purpose IN marriage
essoeDent, which was entered into by and between
Ne testatrix, John Harrison and one Kipp. That
sn the d~aab Of the tesLatrix which took phase on
0csobcr 10, ls4a, the will was proved, and letters
tcstsDentaTy we're issued 10 John Harrison who re-
turned inventory wherein be alleged he held the
property sought to be recovered, - executor.
That Harrison died on the 10th March. 1850,
md the plaintiff appointed collector OF Mrs.
HsUieons estate, lett uDadminissered by her
executor, and that after the exeSutors
death the defendant, without any warrant OF law /,
te0k pos sesaOn Of the property and claimed It as
lie own The defence set mp was thst the viii AMI
c0Si;il OF Mrs. Harrison was void, and thai the
Psyperty In question, notwithstanding the marriage
settlement, belonged 70 John Harrison, % his own
pSSperty and not a. executor, and that the de-
fsadsnt bad win Of John Harrison ap-
painting him executor, and deytsing his re-
siaaaTy estate unit, the defendant, and that he
therefore was entitled TO it, further defence was
nj pp, that the property belonged to the 40
0f Vie tessatrix, and not 70 her daughter, twite OF
fialn.u,) to whom h. Was Wh!ea; aud that he, she
defendant, a9entfAr one son and had porcnased
the right OF tire other 6Oc II his mothers estate
defendant also denied that he had taken the bon,
and mortgage and papers sought to be recovered af
him. The cause %as tried about year since be.
lire Justice Woodruff, and afterwards last fall
gusd Tor several days NJ great length before his
Honor, by NJ NJ MaboD AID MIR. Lock wood Tor plain
,iT. and by Mr.. Natbewe for scfepce. After
tl..rn sttgl tf9Na G1uuf Nf Ia
Honor delivered the following az his con
elusion of Law and fact the case. He
ouna the following facts, namely:-That on
he Path of April, ls44. Ruth 3. Rathbone, being
. angle woman, made the win above referred 10.
That the Oath oil October, lS4l she entered into
N agreement with EhzaOesh Osborn 10 sell 10 her
No. So Leonard street. She then before her mar
rage, and sone time IN December, 1874, ma 20 =
scaic,, Wherein she devised She proceeds of that
hoase to her daughter; and on the lsth December,
lo44, III contemplation of marriage with john Har
risoa, she enters into marriage settlement Wit"
Der Intended husband and one kpp, wherein her
property was settled to her private nse, anu the
foregoing will and codici was ratified aud confirm
cd. and adopted as o Parliamentary paper under
said contract; and The l7th December, lS44, the
parties were married. On the Sd OF March, lea6,
Mrs. Harrison entered into an agreement with
Frances c. sage sell der SIS Leonard. street, Mrs.
Osborne having failed Thy desth,) to complete her
purchase, and on the LIST Of February, 1913, Mrs
Harrison conveyed to Miss Sage the houee in 4ues.
ton, ano tock back purchase money bond and
mortgage for SO 600, Zone OF the papers soueht TO
D. recovered Ia this suit This bond and mort
gage executed To kiPp, the trustee under the
settlement. On the Is. of Oct Der, lS4S Mrs. har-
risoH Gied, without any other testaIucntary paper
Man the one above referred 10. On the 30th
October, 1888, The plaintiff having married
her daughter, presented her will, above referred
=, for probate. Citation were issued, next oil kin
Sites. No opposed the probate, and on the 18th
December, lsle, the will aud codioh we've proven
RAat on the 4th January, lS3o The Defendant, act
nag AZ attorney for executor d her viii, collected
tae sateress on the bond and mortgage above re-
Ssrrsd 70, due on lss November, lsAs, and paid II
ser " the executor. On tine 9Th feb1uary, iSfs,
1ktess testanent..ry we're issued Mrs. Harrisoas
wiz TO Mr. Harrison, by the Surrogate Of NeS
York. Appraisers were appointed, vi whom de.
1sndant WAS one. Aa inventory was made out and
sHayn 10 BY the executor, and fle3 III the Surro-
eases Office in March, ls4e. At this time the execu-
tSr, Jno. Harf son, had become Possessed as O. ca
tor, Of the property above referred TO- when be.
hinged to the trustee under the settlement, ana
veze returned by the executor in his invensory. On
tae stl Dec. uin.r, ls.0, the defendant coected
rome Interest then accrnng on the bond, and gave
f:eipt as attorney Tor the executor. John Harii
the executor, died on 10th MARCH, lSbV, leaving
AL wherein he Deft certain specific cyactes and
gave the residue OF bis estate 70 the defendant Oa
or before she death OF Harrison, the defendant ba
possessed Of the property claimed IN this stis,
nd the same remained In his possession until the
aemms neernent Il this suit On the Esd of March,
1850, plaintiff Was appointed administrator and
sshigendrm % Mrs. Harrifon, and demanded
- the defendant the property In question, eX
Mating to him his authority TO receive the pro-
petty. Defendant refused 70 deliver sla saule mp.
Afser maS ing this demand, and prior to Tho 4,h of
March, 1850, the plaintiff Gas appointed by The
Haprene Court trustee Of Mn. HarTisons estate, In
place Of NJ: kipp, who thereupon executed assign
nenis to the plaintiff for the property in question,
which were had aud procured without any fraud
whatever. The plaintiff thcn commenced this auit
aSAnst the defendant After the suit was CON-
nssGced the defendant was appointed eoIector Of
JOIN HarTisons estate, his wilt being II. contest
bus same WAS afterwards proven, and letters testa-
nsptary granted On the 2lst Of April, 1871, plain
90 bond by the Surrogate. While the ruit was
pendng, VIZ, on THE 18th July 1852, ieste Of ad-
nin,sirator, with viii annexed, were granted TO
plaintiff ard the action was then cont red In the
name of the plaintiff, IN his pewy scqui ed charac-
suw. And before this cause vas trea, letters tesla
neptary on John HarrisoD's VIII we're grantee 20
defendant. On the Gath VI August, 1850, and & ar
suit war commenced, Samuel y. HAIR m, one OF
- iegstees under Mr.. Harrscn'a will, appointed
80 defendant his agent and attorney, manage
kls business, and his brother Charles, 3 , one OF
hs legatees. for The consideration OF one thousand
aoliars sold cut his interest In his mothers eststs
- the dc PENDANT.
On wtonvsday his Honor delivered Tie following
cFini0n and decl-ion:-
Per cpyfnn,, woopnUrF. J.--My conclusions Of
hw, frcm the foregoing facts, are ~ sohOws:-
Firt, That in and by the Instruments above re-
1cand 10, the lAst viii and testament Of isnth y
Raihbone, afterwards HHrrison,) and the g iisl
Nhcreto, considered irrespective o. the ma age
Besklenent, agreement and the trusts therel1 cx-
pxessed, and also irrespective OF the subseouent
marriage Of the said Euth, the real estate therein
mentioned passed directly aud by virtue thereof 10
Gse devisees therein named, and that ms trust or
power 10 or over the same Was vested in the execu
Tor therein named - trustee or Otherwise, and no
60 whatever wss 70 be dcne by him In respect
tAercts TO carry shese instruments into full eject
That ~ W the personal estate therein mentioned
inciQaiDg OF course, the fund 70 b. set apart and
invested Tor the benefit OF Lucy Ann Harrison in tle
contingency contemplated by the oodic, 20 wit, the
fuldlnent BY Elizabeth Osborne OF her agreement
Cor the purchase Of the house No. IS Leonard strec
,-~sbe rspic Vested IN the executor therein nance.
Ore pSovpg the will and oolicil) thirst, for tn
payment Of the debts and legscies; and second
nrun aud for the execution OF the trusts the ,by
asSlsred TO wit, the saic OF toe property, the
eslaeoson OF debts due, aud the investment oil the
prSce<ds and payment OF che income to arise there
iwm, 10 samuel Q. and Charles [. Harrison, d 'dng
thasr lives respectively, and in respect to the suu
a til il.n MD IsaHr Am.