New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1856-12-16
LAW LVTELLIGEVCE
THE GREAT PHELPS WILL CASE.
SUPREME COURT-SPkoIsL TERs-Dse h-betOreJsd


SUPREME CoCRr-Srke!.L IkE~-Dse iS-ne'O's'0's'
oOysrRrcrIos or Tx WILL OF AssoS g; PHkIrs:
Olivia PsePs EKssanI Of he Last W" and q sh.ina
C1TRkK J.-Apson G. Phelps died 3Oth Nov; 1853,
leaving bis widow and I'VE children, via: A u fnei9s
IT,. NJ .. Dodge MIS- Pond, Mrs. Stokes Mr.. Alter
bzry, and three grandchildren, being children OF DE-
cear. daugbfer viz: Daniel w james, Ehr ,be'h +.
Jans, Olivia p. james, and other grancceu iren VINO
were Chi drsn of bis three daughters above named.
Crane chil6rr hsye been bern since his death.
At bis death Mr. Phelps wac sered and possessed OF
laee real ard personal estate the greater part of
which was situated in this Safe; some portion how
ever, WAS in Connecticut Pennsylvsnir Indiana snd
Missouri. His real estate, exclusive or his Homestead
supposed TO be worth 1e million siNty-nrne thou
sand hundred ard fifty dollars ~ o69, 6S', upon
which were mortgages To the smount of about - Ooo
his personal estate including his interest IN the hrm OF
Phelps, Dodge & Co. exclusive of that given to his
widow amounted, as per inventory, 70 s9a so ~. He
owed be- ids the mortgages, about So 900. The net
annual rent of his n al estate in this city about
s24 500 and in Connecticut -, 50G-totsl. S3i eo0.
Nr Phelps left will dated 9th Msrch 1872, ani
thereby appointed Ms. Phelps, bis wife, Etecutrix;
Ar son e. Phelps, ir his son, WIN. Dodge, his sou
in-law, Executors.
The E1ecutrix has slope qualified the Executors
have ct done So although they have not renouncet
The ExecutriI has sold to the survivors Of the firm Of
Phelps, Dodge Co.. all the interest Of the deea.ei
in the Assets OF the firm for S6S9 5o9 20, payable by
their five promissory notes or Sc 900 each and for the
rem andcr they have given -, as stated 10 page
the al estate, under the power trust Contained IN
the will, and continued 10 do until restfaited by an
rjunction order TO provide tor her annuity OF s)O
she has set apart bonds and mortgages aud other
securities amounting 10 $l0i 100, and Yielding
nua in erect of g. ,}2J "a. Thee bonds AMI mort
gage &C. are held by herself Toe widow has elected
To take the provision made for her by the will in lieu
OF dover.
Tie r, question which shall proceed to consider is,
whether the real estate OF the be tsened
vered Tito money before sale Of 1t las bees actually made BY
the eXeeuiIh pursuant to the power contained IN the ofs %
The question Of esvttable conversion it 10 technically
called !. determined BY wh.i court OF eqay aSeA9 n
expressly declared only b. derived from the general tenor
tor What properly and .GfKceny directed TO be done
equity nsdered DONE and the rules sovrnns personal
cable TO real estate WHICH the property e' BY 'e''aor may
By considering the rst article authorizing sale the
r,a estate connection with the 9th and 2lst articles It will
be that the intention Of MI Phelps was to leave the
sale optional With his executors aud not perempouy to in
press upon his estate This clearly dedncbe
OF any positive persve direction be control nE
But coLeIded the power OF sale 10 this case
trust p0wo execution or nOu-extcuion 10 not made
in express depend upon the yoon OF the executors
.SS bepaSc a. eoa must deem the
he tqutaby converted But Whatever may be the effect OF
application seton OF the executors the Court now
ony requested TO give Judicial construction TO me WI ana
this the universal rule, be gov
erped by the intention Of the estaor would BE- another
ques ali majority Of the parties interested pretern
sale II would g. consider whether The
by Of the statute imperative although oJ the scope
end the will discretionary sod whether sale OF the
real BY executors is that description OF gay conte
whether not to the OF the est.to as de-
any e,cum,tanc.s an arbitrary rule and should b. end
cd one step beyond The literal language of the act allows
ruslce duty but to give lea Interpretation to The
Language the will cannot therefore deem the real estate
m by Mr. Phelps be equtsbls converted irrespective OF sn
actual .sle To direct under rid technical rule What ought
be done snd to declare what has been done rny o. 'on
dalesyery eiaerent and de Lnsu.nSb. ... III ,h
residue Of bis estate tres and Persona 70 us sa
snS hse :. he ss hs s.vs children .ni as
end of after bis decrease provided ma ma on
both should happen die before that time, thea a tue de
OF the survivor Of them che ls ss o. DIVIDED "a ne
ton of the ten years in case the Two % ID s
b I've and not by yea, and in no event the sna ion
final disposition Of the estate be suspended ior aIay1
he tor considerably lees than the dura Ion u these
i've Iqt BY 10 p. s,c S'G sr. ' .D. IN. % the
Thee eHais apply with equal force TO the ninth 'fe'e OF
But What quantity ofnere, doe. the twentieth article give
the present children aud srndehldfrn Inc reslalay gu
vest. he estate The stsor death, In the children ,nd
srapdohden then iypg) legal estate during tue pre-
,cItes period OF susPeDion opening tor ns- dVe
eodins the income Of the real RGPeny ~ t mi. osaa 10
the fsrtss prcsumpu elJ enedths is, the children and
grandchildren, in equal shares according 10 the 'us
The income property situated out OF thus SAFE
rre.rnns that the rule the Common Law prevail. Ia 20.
States who're 1t is situated goes to the lef, aw uGs'
there departure ia this respect from tho rule OF the to
Law in those States and pr the parPo'e 81 oosans NE
With gard to the 2ls article Of the will The una rsefvea
I the d me tS. U slT Of Ii. 1eoyy
Ia case che should Die before division Of such esdnly estate
:sSS tai. T r5sp may sSs H. pSd 5nT s
prolorgn actual duis Of the pension directed BY The
III. life of N. Phelps. According 10 the Of the second
alternative OF this 2ls article tn provided ha, ths
finds if he
Children Twins A. the OF her deeasc In cage she should
ss,cs 81 a there may be 70 alteration fund
duine tenn OF lives Il be aiepaed on the
Nf Dcds then may SIN further swai, The death q both
.honi both die be Re Mr. Phelps 70. . further
await H. tcab Of Mr., fhe r. The ,u.peo.on directed b,
he 2nh ree " for Two lives this under any aspect or under
r., rsno, 81, .prnsion be curtsiled by the inter
q, clam the Nd it may 90 At once ihtS th' rs'gy
estate snd abide the disposition provided IN The t6 sr'co
III Toe provision BY the tstaor ir hi. ~ii' supp
By III. zIst article nothing or nothing less Than l,,
r her tenef hi. sole object ike that Of Other P,.oa
directing annual appropriation Of sn acoms Tor ,he
snothor 20 secure comfoIable ara 'ps b
bis Wit during the remainder Of her e eAen !" nn
possible from the interference Of otsTrs OF neI a. a., m
t.es ufes Il r. 5 80 g. So Ipre.y declare THAT
10 perou PRACTICALLY Interested IL us if the RECEIPT o.
Spo.e II such interest" AEd this b. Subsequent provision
5 M sec p E.y BE- made is RSI n. min" Of
d. article Ct the Revised sstate. r.ls ina to u' ana
We. m % 'e later IVe n"s The possr 10
h, ret0e surreLocr tb4-ty sg JAM ' 10
Weud af5. Cute at. Mead. Pal. %
The sbsue owueTshp therefore, Of this fnd re-rrve1 r
:, n,,m.ut Of Mr. Pbspss snUuy, D. snsPnfe be-
y, nd reriod Of ia benthe trust term beng Inn
the remainder limited 20 take erect ~
;, lives Of Per-ons not sscertAnahe
1uI the rrston The disposition Of thts onau
nv I'd 4 g over 10 consequsnty void and tee Iert c.
I'm the enticf 90 r. pF-sons pEpPry uud-
-ed by the will srct 70 TIE psyHeut of tee III sonaty
a. Mrs. lhelp. -, 49,,
~ have Mr doubt that The bsGuetts n the 10th llh,
h fb Eib Eth etb lstb md 1874 afsoleA 'se y1d he
grts aye inclined 10 sDsisa ueh Dqn-t.,
rot
is Of our avg relating 10 trusts p-petu.s TDese be-
al the