New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1855-05-24
IMPORTANT WILL CASE.
1EE ESTATE OF THE LATE BENZ. EoMANE
DECISION OF JUDGE HOFFMAN.
SUPERIOR couRT-srrerAL rrax-M.y. Is5i

conversion Of the real estate into personally or
whetl er the fourth codicil constituted charge upon
The real estate Of the devisor wthou: the heirs or
devisees being brought before the Court.
The case has on other occasions be'n before me-, az
SIecia Tenn. and have decided the following points.
Thu; the plaintiff had a right 70 release from his
clsim tie real property out of the County Of New
York, end TO amend liz complaint, go a. 10 exclude
nth oode formed charge upon the real esate because H
involved the determination Of interest IN real esais' aa4
thst ihe ooici Cd form charge upon such real estate.
such anencrn q the coEI siH hss been made Al Thee
que;ors have been aEau raised and argued upon this trial. ani
Fbsf Evey difficulty the property IL BROOKLYN, viz;
It'd by t ,d1a.an that III properly i. Ies,ehoi Il
then personA lsis in The hands O TIE exeelor- Be.e
eery properly separated from the ieysors estate $, not 70
>Hd Upon The POINT Of the Jurisdiction e ihs Count
md That ID, fourth eoliei form. charge upon he zeal
Middleton 2 "a c. A. 80 T o and Morshous- -, seaiis
question TO Foley Parry Is sous 49, e4ss sin
suary Ike the present IN 4. isat.ns issineS
has tlace6 his estate speak N leo P1renf The
queres Of his thai he whole burden o. supporting an eu'
the plnif 70 Be bo1 BY the properly o. ne ie-
tsier lot IN sd q he par, ggd SA ~ H ssf. =.
FI In ny opinion there conversion Of Toe real
estate INTO Tefsonafy hy this will Tie late the Court
Of Appeal. appear prove th- lHsrr. CLARK, seen
~: Allen v Dewitt, Comstock ls.l
Sr The CONSEQUENCE thsf ' real estate l. liable % the
rsymen Of the eharge but s secondary fund snd The
.fors property must Be exhausted before IL !. rer,et TO-
IN, def ndsnts y there estate and ths
% 49, mon n :. rates 10 the cens-ry and poortv On
irre leland The admission that such property bold,
and therefore assets in the hands o. the executors
This piece property vested IA The executors upon son-
,,r, rot declared the will II il sepeIa,el from rs estate
and part Of the estate upou ~heh the charge "a the cod,
oil cTerate II therefore the trust are valid This property
exempt Whelher they are valid or not ha no Deeu do
s.ed teiofe me- hal s, me pom, On toe 5
Probably Of the parties would Wish it 70 b. apnei
SereHh. Next issue i demanded The parties who
nov require -ueh inquire into the capacity OF to
fes'stor make The viii and cocA were the parte. who
h, admitted 20 probate vii u personal estate that
an srres was the the Circuit Judge who reversed tn
d,esion ed b. Jury whose verdict eas
bed ne will and five codcis upon which thev wer,
admitted probate constituting be last will and tss'aa nj
The record containing the evidence before the Surrogate ha:
produ ed evidence and objected ~ by the detenlsns
In ih section Of the Code caves the direction Of Issue
l,rgn m non % the ju sinen Of the Com. in the
Courr Of Chsucery The rule there that will would
be established without "a ue bu the Cont might BE- entirely
satiled with The re.i trial Wan Also vs. Hunter.
I'm Ij II The evidence before Surrogate T. mad
u-h leave the fct 4 verdict sustaining the will 10 pro-
before NE % irnpesch u the evidence has been properly a.
ulifed should ecncur IN The hntius ,,
ghfh Another point raised by me aei4dant y that he
Isuf could sustain this action for he bal never expended
ely orey u his support 3na edue.oR ana ma u '
ufrue, Any rate The Tant must show that moneys hid
teen expended and s recovery me a,ol c9ld o 81
~ him H. be To- the benefit Of those 4" no made me d.
hIscmelts. .,., ,..,.,... - a., ..
i
must b. mea.ur By fhe amount OF t money pla 10 q
the psiutf. and then follow 4 tle more entirely ne mad
the e ie esonerated and Ibis too when the te,i,toI nd
decred biz property should b. appropriated 70 him from
10th. conclusion lonstrous must D. avoided the ia"
J. 7. true that In the case Foley Parry smons Rep 90
heo, uced the decree was test fhe Master ascertain what
ns had properly expended and incurred hy for The
The rrofeaor Of solicitor The bin hal set forth debts aud
liabilities Incurred BY him aud OF money paid By nm oi Us
support end educaucn Bot me great pf1epe ~
the Wee Chancellor and affirmed by the Lord OhanceoI wa,
this that The words q request hat ms e'lqsiy aes'
cga;fes would suTerlteni and take care q ths parry el
cation 90 f him of respectable pro s-ion ~ employ
, td be- nj out 4 the estate ,V0d, of request arc
. s.e eh decide hai term. Of re4ae., do snoupt 70
air person whose favor the relue-t is made The
,sned 10 hi. viii sit the Panif Of the expenses Of
L education, and education must ineuas nain nanee , D.
The good .tn.e aud me legal meaning men OF te eae N
qe.ton rh't the such 20 the grlnichid 10
b. aIihed ty h' executor - shs o. '.eI. 70 -. am
TuTe mantenarce and education II = eqlfAeht 20 liec-
In 10 him n sum of money adequate 90 hs object. II the
exect' haye us-,esa OF zee. o S , b 5, iS
ete usi pay 10 TO the party FOR II nnot De- discharged nom
AHa The reusians qnes-9a relates to tie anoant see
reason 10 differ from ne conc 'gn- ~ judge Mason me
Thee ali the important points which concern the meri
Tenth As ths taken snd The fact. in the render ).
thai Tho which ha be- andgsd b. raised out OF
The estate OF the tef-es, the next objection % be noticed Is
that al The devices ar not before tie Court
one point tLs, Francis Ous,esd ami Amelia Ouistesd
ea Of s'on vs. cooley Is lads 5 C. Rep i66 removes
difficulty The amendment Of such character 20
weaken the implied admission Of The ANTI claim ~ ne de-
edng the original complaint The amendment VA
that II June 1854 limiting the lnd 70 tue real estate IN the
/ Civ and Count, a. New York.
T. undesul h, objection better 81 should be
Iotoed that 90 the original compliant fled April 1872 Al the de-
SIS, we're made parties By the decision Of Mr. Justice Camp
bell special Term they treated rs unnecessary parties
General e reversed mi. decision and leny they
the record a. parei thai IT, al u them who had
Then 4 D. sid Alice Oeaf. Tye-, not org a y
ard ha= not been tI1ugh; regularly. she
al f.a no
originally Wa y ef- pa -efie OF the summons od OF me
state Which undoubtedly va IRE znlif tDaer ~ Dnei
10 remedy tt defect he plaintiff applied ~ June 1854 f
order m pscaron Alice Onfesi slch order made
publication took place ard the prof- Of are iiaetory
Tie objected hat tle Hdsv did no. state and ne order does
ro, ecte 'iat Alice O.fead could after due diligence.
b. found within the state" precnbed BY the i'5th section
Iiink be ese fi. within the fourth subdivision Of this
,oriie n the section 6. complied with IN he present.
case eScep Tia; the affidavit defective IN the particular men
him sfsr some hesitation that the Affidavit and order
state that the party i uouresien' ed resides
ION l. not wel taken. Justice Parker held thsf rsch
nert IN the sdl uot Necessary ia NeInam Ho.book
IS Howard ~. ZEE as0 Rswton Ewin - H7s4d, 40.
Br- more serious difficulty j. then rreeufed II appears in
the advertisement published that Alice Olm'tead J. te fbed
sf.,e Of the oh 4 February 1851 b. ca-el r. wosd
sppses that e va nurrar 2. the Mn; Or the co an A.
i eAd e om'iead r. as well a. in the aus"e' of'h
Ts.Sfs Vii srd under che ..aute T 1873 :he property 2.
would have ben lirsd fr conform . merely he process
would have been served s-pa ind --e w9Ni so 1-
"a lea % % ersrstey Ho-uan O. Pr App Of
~ Code construed literally does 20. provide fr this
bfre l'5n without her husband W have provided that
When married linan IS parry tLe husband 4,i ne J1ins
spa an1 when The sci9n b@fweeu hr and her
husband he of defends without n IN eicn u
r.ch she dsieud by friend TIE ease 4
be- b.i1s .1,e VII ,e sSa Sg, , Pc. ~ 20 80
I aT4s fr-fa Hr.ra n Hfrrn