The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1858-10-15
The Phelps Will Case .
SUPREME COURT.
Before Hon. Judge Sutherland,

Before Hon. Judge sutherland.
THIS calls for the construction Of the will OF Arson
G. Phelps ST. deceased late merchant OF the city Of New
York and who the 3olh Of November 1853 leay
ing widow and live children, Arson g Phelps Jr, Mrs
Dodge, Mrs. Pond, Mrs. Stokes, Mrs. Atterbugy and
twenty-five grand children, HIM surviving Three Of
these grand children children OF deceased daughter
Mrs james the other grand children the children Of
the four daughters before named After the testa,ors
death and before the commencement Of this acton two
grand children born All the grand children,
executing three, minors when the action com
menced The tstaor died 70 zed ana possessed OF real
and personal the value Of about 81 900 900
elusive Of the homestead devised TO his widow his
valued IL $50. subject 10 mortgages IN about the
amount OF Sl 900 aud his personal property nyenioriei
AT 5000 6 10 The greater portion Of the real estate wa
in the ciy Of New York, the remainder in Connecticut,
Pennsylvania, Indiana ana Missouri In addition 10 bonds
and mortgages 70 the amount Of about 1884 900, all exc
Cuted by himself the tcsaior individually indebted
a, the time his DEATH exclusive Of the notes to his chit
dren TO about the amount Of $4,000. The net annual
| rent Of his real IN the city Of New York
about so4 500 aud in Connecticut 50 500 Total s34
The ,ess,or by his will, which is dated the Gath March
1852 appointed hts wife ryecutrx aud hs sou Arson g.
and his son in law VIM. = Dodge executors The execu
trx has alone qualified. The executors have neither qua
iic or rrnornced The executrx has soIa 70 the sur
vivors Of the lrm q Phelps lodS Co, Of which trim
the member at the time Of his death al
the interest Of the testa'or IN the assets Of the arm ior
$3.50 5G S3 The partnership property consisted both OF
rca anu personal property, the legal title 70 which pro-
perry had been invested M all OF the conrtaers IN i,
as oln tenants and tnans common, for the sole
purpose ~ giving 10 the surviving members OF the hrm.
upon the death Of OF them the legal title and power
~ selng or he benefit OF All the co partners and their
representatives. The execurix has. under the will, sold
other portions Of the real estate and was continuing 10 do
until restrained by injunction The widow has elected
take the provisions made Tor her n tue VIA u eu OF
dover To provide Cor her annuity or t5 900 she has
cxccutrx apart bonds and mortgages and other seen
rites the Of <l04l0o and yielding an annual
interest Of q. SIS so These bonds and mortgages Sc
\ in her own hands Some portion Of the s9Saop OF
mortgages was real estate not IA this state. In
construng this will the rst question ~ whether the rca
the tstor to be considered ~ converted into
money under the power OF sale contained ~ the viii
The Judge cites deliberately from the WILL the psrtcu
lars Of which have been frequently before the public and
the Will itself was published At length ~ IN HERALD some
| years since. Tho Judge concludes thus
! think there " unlawful restraint, upon alienation,
any unlawful accumulation, directed 90 involved. ~
thc provision Of the WILL AMI that The whp'c vii valid,
and should To- carried into effect. N an, objections
have been made 10 a by any Of the partie- 90 these
grounds. AZ 70 the religious and charitable cSar'es.
think they an come within owens aganl the Missionary
socety, NJ T. Church, IA y Rcports, 80 and are
valid. exccp; The cundt ona one ~ $4,000 or erecting
and founding college IN Liberia. Mrfa All the uiher
charitable cgaCics given 70 corporations, capabe ~
taxing q trustees capable u administering te char.
tics and tho charity or object ~ tn other chariiabf
oraces sufficiently plain and distinct II the lcgarics
given in The twelfth eighteenth aud nineteenth articles
81 the will should be considered given 10 the Treasurer
u the American Home Missionary Ssciety, othe 'Dea
II the Congeg onal Church "a sms1ury Connect
cut sc % the Acting Treasurer Of The New York Colo
nizaton Soceiy. mentioned IN those articles ~ the VIII
respectively n trust for the char table uses and purposes
III those srclcs scveray spcched and not 20 tl execu.
tors In trust although formally expressed. sjll Thus
tho bequcsts valid the char tics benz sufficiently dentn
aud the treasurer, dtacous. g., being persons easily
I asccrained and capable OF taking tut The gfl a Nic
seventeenth article Tor the erection AM founding y 81
ogc n Liberia ~ tnk ~ nsehnte " ~ sninreei Nhi
Kind 81 Cnrpc did tue tcstanr MANI keln'fss ltf
rarv or college ~ ~. sicahst ~ ~ wished hs " eve.
cunrr ~ have y view IN Establishment ~ tao 1gi II
department said college e. re under the SUP rv.ou ~
the Union Theological SmInafA mtne ctN " NtN h"fk
/ perhaps h. meant literary ~ Wroi'Gcs co.ntN ~
how dd H. intend a. be under tae SUBDIVISION u thr
/ Unor Theological seminary n the ciy y New folSf
10 he mean ~ money " y ~ we t.tu ~ W 49,.
/ ing, ~ " " TIE rstahllshuch - ". W. 80 aeIsft
mcntf VINO were " ~ t1e itt.t'.AW ~ eI.i
/ usrt Tie txetNtos are ohA - plyo.F ~ fpTN W
money % ne hrt instance y L une ,neN ~ y wy
70 thor discretion. but W. "Wetol nc cha'N aaa hc