New-York daily tribune., 1854-09-06
SUPREME coURT-sPEcr.L TrRs-Besor- Jsise cLEsx,
WILL or JOIN JACOB Asron.

Lsnsson against wills ard sthsconsucoa Of As viii Of
Jshn jacob Ascr.
By TIE Court-The teststOri the late John jacob
A.ior devised lands in various parts OF the City Of
Nsw-York 10 the children OF his daughter Dorothy
Mr.. Lspgdonj during Their hyes rsspecuEel!, anu
on the death Of each OF them, 70 his or her survVss
issus in fee simple 10 be divided according 70 the
number of the children. The viii authorized Al; et
ecutsrs at the reques; any of the persons 70 Sno
these lands are devised, 10 Get apart taelf IN
seytrsy subject 10 the future estates hmitel IN US
dsvises and he further authorized the executors 70
charge the lands with 10 equslze the shares IN
the land itself cannot be 40 psrtoned as 70 pro-
duee equality He also authorized his executors 10
convey 10 the Trustees OF the Astor Library certain
portion Of these lands at valuation to be ascertanea
BY them; and he provided that the amount OF sach
ysuston shall be spportosed among the devisees as
equivalent for the land, and shall be held and IS
posed Of IN the same msnner - he directed IN reiaton
to the land both as TO the capital and income
Il is clear then, that the land thus conveyed and
the proceeds Of this valuation .h6uld be equally alike
capable Of division emeng the devlsees precisely as
part oftbe land converted into money Unless
We can discover something in the viii indicating di
ferebt intention must conclude that the testator
designed that the money should be included in the
partition well the land of which 1t is taken as an
equivalent The will contains nothing inconsistent
with this arrangement. Indeed, the conversion into
money of part Of the lands facilitated the partition
foy which the teststor especially provided subject to
q option Of aDy Of the devisees, by taking
the remaining lands and the proceeds OF the land con-
ytyrd u the trustees oi the Aslor LiDrhy, anu to-
garGing them denticGl-an equality of partition ~
uch more easily effected than If the subject Of par
tition wholly consisted of laRd perhaps dispensing
with the necessity of charging any OF the shares with
sums to make them Gil of the equal value.
The executors are expressly authorized to charge
any of the shares TO produce this equality now If the
amount of the value Of land taken for the library 10
subject ike the land ITSELF to partition as 1t most
assuredly isl applying to former directions to equahze
the shares ss nothing more than charging any Of the
of which
positive provision of the viii the whole subject OF the
devise is made liable.
But to this believe none OF the parties concerned,
whatever may be their doubts, make NO decided OPP
position The chief difficulty arises another point.
The will authorizes the tenant for life, with as
sent Of executors, TO sell one half of the shares de-
ysed 10 him for Improvement of the residue OF his
sbsre II the share Of such party, however consists
of portion of the amount Of the value of the land
convex ed to the Trustees OF the Asior Library Is It
in accordance with the intention OF the tesatOr that
this should be epportioned 10 such Improvement IN
ste ad of compelling HIM to sell more of the land to
effect the ssme purpose or rather the question Is,
can the Court efectuate purpose of this kind 81
though it may not strictly be within the letter OF the
WILL if it is in conformity with the substance aud
spirit of it, and plainly promotes the ends which the
tssafor himself must have contemplated in providing
for tie arrangement!
In the execution of their duties the grantees OF
power are bound 10 strict, aid ia many cases to
literal adherence 20 the instructions comforting the
ton. But il does not follow that there is no remedy
when a literal execution Of the power would produce
ffiCulty embarrassment or unnecessary trouble,
when a slight deviation from the Instructions OF the
gran,or would effect the purpose with greater fscil-
ity ard TO deirment TO the interests involved and
would equally benefit and certainly accomplish the
object designed by the testa!or. Equity wiz never
compel the performance of a duty by clrcuitous and
complicated process whom be done without any
viola ion of the intention of the testasor by direct
and convenit Mt means. The history Of the equitable
iurisurudence Of England IL full of instances OF this
nature. The numerous chsIitable and educational
institutions with which the pety and benevolence of
Cast and remote ages have filed the land, have been
continually during TIE last and present centuries,
undergoing changes under the supervision OF tue
CouIt OF Chancory which arc entirely az v'nance
with the directions ar plans cf their tounders Inc
Circumstances Of tie country ano the progress oi cI.
vllzaion have produced such changes that literal
oouplaIce with the original plan would, instead OF
fulfilling defeat the purpose ior winch these insttn
tons are designed, and although they may be merely
prva'e tndCWments the Court has never hesitaed 10
interfere
In the present case, to compel devisee to sell a
par, fthe land for the Improvement OF the rem an
der when fund Is already provided by the sale OF
another portion of the devise merely because that
sale was nct specifically for tue improvement would
be too iastiGiCus construction OF The testator lnten
ton when we plainly perceive that the oeJeet 10 ior
money should be applied TO such improy yement, and
that no more than One-half Of such deyisses share
should be sod for that purpose Whether the money,
in point of time received by the executor before
the devsee thought it necessary 70 appropriate II for
that pur ose or whether the land was sold pr0'essedy
for such an Appropriation WIS but secondary con-
sderaion, rather subsidiary than essential 10 the end
proIo.eG by the testaior in the numerous and com
Ilex arsnc emeDts contained IN his WILL
Therefore, if any OF the tenants for life shan be
desrous of improving any part OF the real estate to
be apI oticred aud apart for hun her the execa
tons ire authorized 10 make provision for the apph
cation o the shares Of laid party in the fund produced
by tie sale TO the trustees of the AstOr Library, for
the purpose OF such improvement with the like ef-
feet a. the same were the proceeds OF real estate
sold By the tenant for life with the assent OF one OF
the executors uniting in the deed, pursuant to tn pro-
visions OF the nth section Of the WILL
SUIT FOR SEPARATION.
Mstds Mckay by GABRIEL Frauchsre her father her
friend, agt Jemes Mckay.
Suit for a separation from bed aud board, and that
plaintiff may have the custody Of the thtee children
of the marriage.
In her complaint, Mrs Mckay ssys they were ipar-
red ct Detroit ami resided, for some time at Mich
gan, but cane subsequently to New. fOrk, and that
che resides bow with her father az Brooklyn. The
apple aiou is the ground ofabandonment, and that
his habit of using intoxicating liquids aud OF s@elring
reDosrs him unfit for the custody of the children
whose care ard education che now c,Gi ns-also for
anony ard that a farm which belongs 20 her in.
divdually at Madison, New.Jersey, may be secured
10 her and her children il being barely sufficient for
their subsistence She also complains that defendant
has obi ared possession Of their eldest child little
boy ~ Of age and tnTeatens to ake from her the
Other two She SAYS they removed from New York
to Madison but that he left her and the children there
for three months doing little nothing for them, and
lrH fHefn a ifirna he 4tla ara