The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1854-12-09

ous objsct u bis WIN 10 10 TO meet t&ose ssata-
gencies which the Law would mot always meet'-
end be gives TO Eliza Ann Purdy his large family
Bibse and osher arices valuable = family tokeas,
and also the sum al $780, which, in case Of her
death were 70 90 TO her children. and speaks Of bar
o. one " whom he had brought up from her infancy,
and until her marrisge;"-hs also gives to son Of
gives to his only surviving brother 5000, on his
enbarking for Liverpool and to his five childrea
$500 between them. but not 10 be sent TO them by
their father He next gives to three nieces In Oaio
niece Ia Boston $408, 70 t1o nephsws . note which
be held against one Of them for $780, and to taeir
brother $50 and then gives TO Samuel Haskell
Stokum, " who was born in my house. and st his
beguest to Mary p. varian-Is is a. follows !:
10 Mary +. Varian, who has for many
years been an inmate of my family, and in
confederation OF her faithful services and kind
attention to my family and myself In sickness
and 10 health, and by her frequent watchings and
fatigue, has greatly impaired her constitution, l
give 81 bequeath for tbs term of three years from
The time OF my death, the sole aud occupancy Of
my dwelling house and ousbuiidings, with the land
thsreto belonging, and also the use OF all the fur
nifnre in said dwelling house, excepting those ar
ticles heretofore designated, and which are to be
gwen mp Immediately after my death. This family
stores which shall be On hand at the time Of my
death also give to the said Mary P, and at tue
expiration ct three years or whereabouts, from the
time Of my DEATH order and direct my exscutors TO
sell both real and personal estats, and out OF the
avails to pay the afo esad Mary P. legacy Of $780,
lawful money, which will and bequeath unto her.
The residue order to be divided among the lega
tees in Ike ratio as their legscies." Tner, after
giving some small specific articles, he adds clause
- folio ss:-"i order my two los OF ground lyiog
between what arc called Dukes lane and the Wy.
man ave nue.. ana also my on; door personal proper
ty to be sold at my death, tho avas of which, with
my bank stock and notes OF band. trust will pay
my leaacies. If not order 1t to be duly apportion.
ed m0ng the legatees, according to the amount
eq.eaihed. ard II it should overrun, Let it also be
divided in the same ratio" To no one does the tes-
t>tor profess to be under any obligation but to the
sppella T, Mary r. Varian. She had been the in
male OF his family ard had rendered faithful SER
wees sIo kih1 attention to himself snd his family IN
ckIess and in health, and had by her frequent
wa'chogs and fatigue greatly impaired her con.
stitution. No one else did he recognize as having
claim On him for kindness or services rendered
to him or his His attachment he showed to two,
one Of whom bad been brought up by him, and the
other had assumed his name; bu. he states no act
on their part calling for peculiar favor from him.
His only surviving brother, and the children Of that
brother ne knows afaI of orly"-the brother is to
be paid the small legacy Of 5000 only on his leaving
this country-"on his embarkiDg for Liverpool
The testator also gives to Mary P. varisn $5OO-a
larger sum than 20 any one other individual, except
Mis-. Putdy, whom ne had brought up from her ia
fancy also gives to her the use Of his dwelling
and its uiture aud of the outbuileings with the
land atfacbed-whicn was probably Of more value
than the specific ARTICLES given to Mrs. Purdy. He
thus showed that Mrs. VariAn was Intended to be
favored by him above others, and makes 1t proper
when there Is doubt a. TO the meaning Of tho
words used by him, that that Interpretation should
be given to those which would most favor her and
thus carry out what was his general intent. He
had given to Mrs. Purdy $500 and some specific
articles, and to 8. 81. Stokem $500, and to nie,e
$40O, and to other relatives smaller sums. Why
should he ~sh the residue of the proceeds of sales
Of bis dwelling and furniture to increase their lega
ces. and not to increase Mrs. Varian's Certainly
not from any affection or interest which be had ex
hibited TO them over Mrs. Varian-for to none had
he manifested an obligation except TO her. hts in
that Mn. varian should also partake with them in
that residue. Otherwise, she is the only OK
ception, and she tho one to whom he owed
TIE most, ard who, by her frequent watch
constitution" The construction favorable to her is
the only that can be creditabe to the testator
or consistent with the motives which be- has ex
pressed The liberal Interpretation Of tho will leads
out Of the proceeds OF sale - legacy Of $500" be
paid to Mr. Varisn and In effect, 70 be paid before
any other legacy u paid-thus showing sail bis pre-
ference to ner-he adds:-"The residue order to
egaciee Hebad not, in any previous part oft2e will.
called the sum given 70 any legacy, the per
son egatee, until he gave the $500 70 Mis-. VArsn;
and that alone he expressly calls legacy. When,
the legatees in like ratio their egaces" the Ibis
raj Interpretation also requires that Mrs. varian
should be regarded az legatee and the pecuniary
bequest to her ~ legacy, and that she should ~
clude her would require the insertion Of word
sbich would alter the meaning of the sentence a.
it stands, viz "0ther," before egatees: to include
her leaves 70 the words their proper meaning.
Among the legatees," is the same as "among all
the legatees," or among the said legatees" Mrs.
Varians beqnest was fact, and by the previous
adopted by the testator, legacy. The
argument against her claim Ia rested partly on tho
fact that In subsequent clause Of the will other
real and personal estate is directed tobe sold at the
festator's death and the proceeds to be appor-
TONED among the legatees according TO their res
pecsve leeacies; and IT IL said that as thus
death Of the testator, and Mrs. VaIian was to be
paid her legacy of $500 only at the end of three
years after bis death, she could not share in this
last distribution. and, 30 it was argued was not
not 90 clear that the teststor did not intend Mrs.
varian to share in this last division, as to make
that inference basis for an argument against her
in another part OF the will WHAT he means In this
not because the words used would exclude her, or
show an intention to exclude her, or sh0x toat the
testat0r used the word legatees always excluding
her, but because her legacy not being payable until
three years after the death OF the testst0r Ii In
feered that she not to share with other egatees
in that which was to be paid on the death Of the
testator. The same argument does not apply to
that which was to be paid to other egatees ay the
same time that she was to be paid her legacy.
This clause from which she is excluded might have
more the appearance Of an indication Of the tesla
tors me aiming Of the word egatees" If It had pre-
coded the other clause; but even then it would Be
fot ced construction when the testator had express
~ described the gift to Mrs. Varisn as q legacy,
and that, too, Immediately before the clause In
which he directs the residue to be divided among
the legatees in like ratio their egacies. The de-
cree should be DO modified ~ to allow Mrs. Varian
to share in this residue and to have the costs Of the
appeal paid out of the fund.
Superior Court.
Before Hon. Judge Bosworth and Jury.
ACTION AGAINST THE BROADWAY BANK.
Dc. 8.-Jdmes s. Gibbons o.. the Broaducsy
Bank This MAS an action brought by the plain
TIFF for compensation rendered the defendants In
organizing and starting the Broadway Bank, In
this city, and getting subscribers to that under
taking. Th0 plaintiff aTeres that he devoted hi