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

M ssdEsa = ~, tAsa issRunsat q Svqris
siesvs operated 70 vest the tts in equity according
UpsD The death Of NE ssid Ruth B., D0shing suain
"a 70 b done BY tAe sad Kipp, beyond tho mere acts
Of transfer Fer all purposes material 70 the con-
sderstion Of the rgsss Of the parties 10 Court Of
Ruth s., according TO tae directions contained 10
such last win and codici, and whether an actual
conveyance of the real estate embraced In the trusts
was or was not necessary 70 vest the persons ne med
detisees in such Last will and codic IT 10 not ne
eeaary for the purposes OF this case TO inquire.
The delivery of the personal property In conformity
with the directions contained In the marriage SET
Element to the person who was appointed TO receive
the for the appointed purposes, and hss actual
possession thereof and exercise OF acts Of control
over the same, and ha collection and appropriation
Of the same, sufficiently invested the title 10 him,
whether any assignment or transfer 10 w1ung was
executed by Kipp ornot. indeed, it might perinape
be better said that such actual posseas,on and CON
troll are sufficient 70 warrant the inference Of IN
tual transfer by suitable formAtes to vest in hita
the title Be this a. It may the title vested in equ
ty the death Of the said Rsth ST. end the delivery
Of The personal property thereupon, sufficiently con-
ferred the legal title thereto, and in my opinion
efeCtually as II an actual assignment in writing had
been made. And again, after taking such possession
and CONTROL 1t would not lie with John Harrison or
those claiming under him, TO ailege that ne had mot
tit under and according TO the provisions Of the said
appointment but the answer Of the defendant hero
in distinctly AYERS An aotaai conveyance and trans
fer by Solomon Kipp tho trustee, to John Harrison,
in obedience to the provisions Of the marriage set
tlemeDt agreement, and therefore as against this
defenoant, such . transfer may for the purpose OF
this ease be assumed.
Third, That the execution and delivery Of the
bond and mortgage BY Frances G. Sage, to the trus
t.t under the marriage settlement, with the concur
the said Ruth s., had the effect OF subject
ing the said bond al mortgage, and the moneys &C.
led thereby, 10 tue op, rtions Of the provisions Of
that stIun. ut then in being ito wiz, the said last
will and c0diciD. II was a conversion Of portion
of the real eeiate held by the said Kipp az trstee
into personal estate. The saio Ruth 8. by the pro-
visions OF the marriage settlement had power TO ef
feet said conversion, aud TO direct the proceeds,
any part thereof, 10 remain in the hands of the said
trustee, and she did no mOfe than this. No assent
Of John Harrison was necessary 10 subject thOsc
proceeds Oh sale OF portion OF the trust estate 70
Tie operation OF u marriage SETTLE ment, OK the APP
p0DtMent by which the ultimate disposition OF the
trust estate was to be governed. This bond and mort
spcct 10 .hich new appointment by tho said Ruth
s. WAS necessary, and therefore If 1t were concluded
IS insisted by the defendants counsel, that in re-
spest to property after the marriage, new appoint
nent must be made by the sal Ruth, Or in default
thereof the same must be deemed her property unsp
pointed, and ut her death inject to the marital rights
OF John Harmon, and passing 70 him ~ her legal
representative tor his own use, and without ac-
colntab iity to amp except her creditors, there
FORE Tin accordance with statute regulating the
rights Of o husband over the property of his de.
ceased wife, Rev. Stat 49, sec. 25) this bond and
mortgage did lot fall into that condition. By the
IL continued in the hands Of the trustee, 1t
not withdrawn from tho operation Of the trust or
the then existing appointment relating thereto
But on The other hand, II It be conceded that this
in the nature Of the property, is to be Deemed after
acquired property, or II It were cOnceced las also
insisted by the defendants counseD that the con-
vcyance 10 Frances G. Sage was iteelf an appoint.
L.xk ~ Un..AA ~ l~--~ III "A
Leonard street TO the said Sage which defeated the
Will and codicn 20 Tar rs related TO that property,
the result would not be different, for the power Of
the said Ruth, under the said marriage settlement,
further to appoint the ultimate disposition OF the
property, san continued. and the making of the
bond ard mortgage to Kip, (thc trustee,) with the
concurrence OF the said Ruth, was even IN that
view. Of the case, an adoption Of all Of the
provisions Of the marriage settlement aud
the existing appointment, Ito wit, the will and
cooicil) eilectual Is II the said Ruth had, by
new appointment in form, directed the said Kipp
y hold the same for the purpose already named in
the viii and cOdocii referred to. Whether by tse
conversion Of the house and lot No. IS Leonard
street into personal estate the making and delivery
Of the bond and mortgage by Sage 70 the trustee,
had the effect to change the ultimate destination
,hercci from Lncy Ann to the two sons, II is not
necessary to decide; and, therefore, whe' or its
ultimate disposition by the trustee kipG, hv John
Harrison, as executor, OF the present plain. 70
he in conformity with the directions cont cd ia
borne having failcd) the same passed under the
general distribution contained in the will in regard
70 Iersona property, does not etec. the decision Of
The present case; i ID sufficient 10 decide that u
remained subject 10 The trusts and to The appoint
merit made BY the viii and c0diCil, which soever OF
them may when that question arises, I've held TO
govern II. II the provisions Of the 0odicii be DEEM
ed applicable to any conversion Of that house and
lot into personally in The hands OF the trustee kipp,
anu the sale and conveyancSto Sage be deeaned
substitution for the contemplated sale and convey
aDce to Osborne, then the beneficiary named IN the
codicil may require that corresponding amount
be invested for her benefit and If such sale ~ deem
cd revocation OF the devise made Of the hosss ari
lot, and also Of the direction contained in the soi
Gil, then Samuel G. and Charles I. Harrison nay
require that the proceeds, with the other pei ,nal
estate, be invested for their benefit. bgt 10 ether
aspect Of that question: the appointment conti ned
in the will or the codicil applies 10 1t and will gov
ern il.
Fourth--lna, although, BY the provisions of on.
deemed revoked BY her subsequent marriage, :
Rev. Stat, u, rec. 36.) such subsequent IN rris V
does not operate to prevent an instrument, eou-J
before the marriage, and established blythe mar age
settlement, from taking effect upon the properly
settled, according 10 the very terms Of The set
merit itself. By the marriage settlement in q >
c.se, John Harrison and all those claining under
Inn are excluded. BY the covenants contained
trators were bound TO permit the sid last will amt
cSdioi to be proved AZ sDch; and therefore by in.
plicaiion, to aequiesoe in all the legal rcslts mich
fow from their fun recognition as the last will snd
testament OF the deceased, whether strictly and
technically last win not they are 10 be dec,,ed
such, SO Tar Is the legal or equitable rights u John
Harrison are effected by them; and, in Court OF
Equity especially, neither he nor bis represe tstyes
will be permitted, in the face OF HIS express cove
nant, to deny to them their appropriate erect
~ such. And again, whether strictly or tes nj
cally alast viii and testament or not, the II id
win and c0dicil were ~ before suggested, a valid
appointment, and were testameutary IN .hcir
character, and an appointment testamentary or
in The nature OF . last win and Testament
in which the duties to be performed are such ~
properly apper,ain TO the character Of an executor
whether made and adopted by . marriage settle
mert before marriage, or made in pursuance Of tho
marriage settlement after marIiRge,) is arpropri
aseg proved Parliamentary disposition, {st least
go tar personal estate is affected by IT, and when
the will Of the said Ruth was proved in conforH
~ with the express covenants contained in the
rage settlement Itself, II became 40 sgai.st John
Harrison and his representatives in effect in equity,
and az think at law the last will and testament