The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1854-10-20
Suprs nae Cou1t-Dpeclal Tel N.
RAfr "a A0a Indna ClarkA


Or IS - La~0don e. Wilks.-The tsstator, the late
John jacob Astor dsid lands in various parts Of the
during their lives respectively and on the death Of each
OF them, his her surviving Issue in fee simple, to
be divided sccording to the number Of children BE au
thorzes bis executors at the request of Of the
whom these lands devised ~ set apart their
shares In sevealt subject to the future estates limited
charge the snds with tquaEs the shares In
the no itself carnot be 20 partt0ned to produce
equality he also directs his executors TO convey 70 tho
directors Of the Asor Library certain portion Of those
lands at valuation IA be ascertained BY them and he
promises that the amount Of such valuation shall bs p
lands and shan be held and disposed Of in the same
be directs in relation TO the land both to
not thus Cd and tho proceeds Of this vain son
should be together alike capsule OF division among the
de,es ~ II no part Of the land wore converted
indicating different intention must conclude that the
etator deene that the money should b. In the
equivalent The viii contains nothing inconsistent with
this srrApg ement. Indeed the conversion into money
q part Of the land facilitates the partition for which
OF any Of the devisors By taking the remaining lands
and the proceeds Of the land conveyed to the trustees
an equality Of partition much easily effected
than the subject Of partition wholly consisted of
any Of the shares with sums to make them al Of saus
value The executors expressly authorized to charge
any Of the shares to produce this equality Now the
ry Is subject like the land ITSELF to psrttionas it
most assuredly is-applyins the former directly to
equaze the shares is nothing than charging any
OF the respective parts Of this vsuation-to which, BY
the positive provisions Of the Will the whole subject OF
the devise made liable But to lbis believe of
the TaIties cencefned whatever may be their doubts
make any decided opposition The chief difficulty arises
in another point. The win authozes the tenant for
devised to him for the improvement Of the resdus
Of his share. the share Of such party, however,
sts of portion Of the amount Of the valuation of the
land conveyed to the trustees Of the Astor Library, is
IL accordance with the intention of the testator that
this should be appropriated to such Improvement, in
stead of compelling him to sell Of the land to eect
the purpose Or rather tho question is the
court esetuate purpose Of this kind although it may
S q b q " m
" promotes the end which the testator himself must
have contemplated in providing for the arrangement
bound TO strict ard in many cases. to literal adhe
renee to the instructions comforting the power And in
Soss oo % ss 70 snss vS
cution Of the pows would produce difficulty and
ment or upne eessary trouble, when slight deva
purpo'e with greater facty ana detriment t. the
Inter ests involved and wi equal benefit and certainty
viii newer compel the Of DUTY the
cutous and complicated process, when It can DO done
without violation Of t,s intention Of the srantor By
direct ard Abe history Of the equitable
jurisprudence Of Eng and L fun Of instances Of This
tuIe The charitable and educational nstitu-
sges have Gled that land have been constantly
during the last and the present century, undergoing
cnapgee unCer supervision court CnAucery,
which entirely At variance with the directions and
plsns Of their founders The circumstances Of the
county and the progress Of civilization have produced
such changes that literal compliance with the original
plan would instesd OF fulfilling, defeat the TO,
which there institutions designed and although
they may be merely private endowmeuts tie court hiss
never STATED to interfere In the present case to
compel devisee to sell part of the land for the i'm
psovement CT the remainder when fund Is already pro-
vded by the sale Of another portion Of the DEVISE
~ because that sale rot specially for the improve
ment, would be too fastidous contraction OF the tes
tators intention when plainly perceive that the OBJ
ect which he DESTROYS Of promoting was that the
money should be applied to said and that
than half of each devsse's share should be
sold for that purpose Whether the money in point Of
time was received BY the before the devses
thought Necessary to appropriate to that purpose
whether the land was sold professedly for such an
appropriation but secondary consideration, rather
subsidiary than essential to the end proposed by the tes
tator, in the and compete arrangements
tanned In his w Therefore. any OF the tenants for
life shall be desreus Of improving any part Of the real
estate to be spporoned set apart FOR him her. the
executors authorized to make provision for the ap
pcaton Of the share of such party the fund produced
by the sale to the Of the Aston Library for the
purpose Of such improvement with the like effect
the the proceeds Of real estate sold BY the
tenant for e with the assent Of Of the executors
uniting in the deed pursuant to the provisions Of the
eleventh section or clause Of the viii.