New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1870-02-18
THE COURTS.
SUPREME coURT-spE1AL Trar.


Before Mr. Justice Bornard. - The China.
Estate iereirat sgt. gilman tai. gilman agt. NeL~ias
81 at-Nathaniel Gilman died in Wateryie. Maine Dec
10 1882 leaving WILL which his executors had .d,n,S
To probate In NewYOrk City. His wife applied for "a
miustration m Maine and letters Of administration
were granted there dispute then arose between ~
executors aud administrators which was tried In ~.
Special Term of the supreme Court Of this state Jnd1s
Barnard has rendered 0p Mon embOdyng all The 80
facts OF when The following h an abstract: After staL
Ing the facts already mentioned, aud the claim Of the
executors that the action OF the Maine Court was not
binding on the asses here, and that the assets Ia hl
State must be administered under Tie laws of M.
state, he holds that the question Of he testa,o,.
domIcIe must be settled unGcr Tho rr ,'a'ors
set forth in numerous cases which he cIcs IJe
then states, as facts bearing on thar on.s,tdn o
that Nathaniel Gilman donlced M Maine prer ~
1896; that ~ December 10, 1852 he died there AT e 40.
OF 81; that in 1884 he commenced busiucs. % ago
RED his present widow In ls3e he owned a koms.is,d
In Waterye, several houses and stores IN that place -
was reported TO be worth 100000. his buurs. E shu
vile ceased when he left there though lie Iran.S -
homestead and real estate he boxed up s0u.e old
groceries aud ieh the furniture aud family pictures
there; he transferred his business 10 NeVYDrk and ia
duced his son To come GRE and join BIN he transferred
ms sHlps here the Dusln"a- OF MS bfn here
million year, continued down 70 the death ~ Ls son
and closed mp In 1855 ne brought his and sonsa
law, ". ". Gilman. Edward Mcclellan, Win Erdl1g,an
aud George f. Gilman, here 10 esab IN them !n but
ness; he sealed up - family tomb 10 Name eI.
pressing wish that his family should be In
IN consequence that he had not come To New York EAR
her The business Of his later life aud stock
Brooklyn lie usually spent the hot months Ia Maine at
the Waterye homestead. but not always; he paid taxes
Name 1885, lac voted there On the theory that thres
months residence gave him the rst. FOR which. to ms
disgust he had to pay supplementary tax The neI.
year. ~ break up this dea he vent 70 farmugt0n ard
the next boared at Watere, renting hIs old house. 10
l54s he built his tomb in Greenwood solid and strong
and then buried hts mother. his son. Nathaniel AID
Nathaniels son. and his daughter. Sire. Rcdington lie
Waterye, was suggested TO Mrs Gilman 10 o pofarily
bury hun there She objected to It the ground Of h
homestead for himself Ia Brooklyn Ia 1850 ne purchased
house there, describing himself OF sew York no,
up: had his old furniture repaired and moved n Hls
family selected their rooms In a. Mrs.. Gilman, room
was repalnted TO please her He vas anxious should
ready ms return ia the Fail. It is obvious from he
evidence that Mrs Gman preference for the hoe. had
alone Kept him from Keeping house before. Judge Bar
nard remarks the retCcHce VI the defendants as 70
this Brooklyn house. Shortly before dying be directed
Mr. Redng,on to write !Or ms val, PREVIOUSLY prepared
aud then corrected II by cOdicll IN both viii and
| cOdcA ne described himself Is Of NcS-YOrk, and
| In the latter directed himself 10 be described as
resident OF NewYOrk temporarily residing IN Waiervie
IL being tcsucd 10 that he knew that according
laws Of Maine the widow could waive the proceedings
! the will, and obtain allowance Ia gross from the
Courts and IL appearing from his remarks that lie
ticpated such intention her pa.t, (Which she sub
sequeny carried QUIZ ana desired 70 cut her on IRON Il
Mr. Justice Barnard then briefly the sIeps sub.
sequenty taken by the widow IN procuring first a De
csOn III her favor ID he next statute aiding her 10
her process, aud finally third decision Increasing ths
| allowance to her. lie concludes that Mr.. Gilman de
| uncuy meant 10 prevent THIS state u tLngs and
! the squandering OF his property. she, be says,
knew VI these designs, and That 10 further them
he intended hew-nOik IS bls dOM'cle He CDposes u
the facts OF his marking trunks " WaUTyie aud de-
scriOug himself IN deeds as OF WaerylIls at most
tribes Some other facts, sUcn a. L.s describing himself
as of Watervle di,poses Jy tie fact dat SIR Ga
man devoted to money, ana one Of MS chief objects
in ObedtHce 10 his idol was tL9 avoidance OK taxes
Hence his failure 10 vote hence lis living the hle Of
Arab lie recalls, without comment Mrs Gtmau's post
poning the sending OF her husbands body to Sewlort
upon preteuse that she Ill, when in reality she,
with her counsel sCheuug how 10 dctc4. what Ia
| knew 10 be his Will and intention"
He thinks, the whole, that II is clearly established
| that his dOmlciie was 10 Ne"-l0Ik.
IN he lf,lN
erty State and on TINS point ne holds that the par
ties relying On tnen must show tvely that tho
Probate Court Of Maine had Jurisdiction o. both the par
ties aud the subject matter That the record showed
that IL obtained no jurisdiction OF tue panns the exec
utors their representative capacity, and therefore,
no Jurisdiction the property held BY them excel
tors IN this state and that It certainly obtained no Ians
dicon over the assets OF the estate IN this stale He
holds that the Surrogate Of this State obtained iu Jnus
dictfon them and that the executors are therefore
Surrogate.
Judgment a. prayed for and directs decree accordingly
! Before Mr. Justice CdrdO=O-Jhe IURnciRg
| Of Broadtcay-The Court pH not HtcrJere-Ihe Mayor
dc, agt The Beach P1su"'@1 Transit company Ia lhl'
case II will be remembered the CITY sougAt To resala
the further prosecution ~ the tunnel now being pushed
| down Broadway from Wareu.st Judge Cadozo has
rendered ms decision, boidng that tAe deIghlAlts ars
doing nothing which, under the acts OF the Lel'.aure
they have not the Eht 10 90 sna ~, u,GSl 's 10
eisiOn in The People aSt Kerr or te d'c IN mos. case
not be too closely scruzed at specal 4er the ses
| are not unconstitutional.
He adds that II ne regard the case as e'esf n.
should be inclined 10 hold that an injunction sbol4 nOs
issue until the question had peen passed ueh o US
General Term, because the defendants had incurred
large expenses aud tie plaintiffs Had sdH them " 10
| 80 without raising amy objection. -
| Before Mr. Justice Cdrdo-o.-Ihe l0urghH
Cnse- IOHgS agt. IOmgSlhis xas an action u decide
The meaning Of VIII in which, from the peculiar phrase
oory Of the WILL II somewhat doubtful whether BIS
two nephews John and Gideon, took remainder IA zee OF
whether they merely took renainders VII c ia the even.
OF either dying before their ancestor wOdd Pass 20 De
other or finally whether their interest was vested VI
changed Judge CardOzO holds that the deVses u tho
nephews John and Gideon. did not lapse, bnt we're ne
| "
hut without finally dIspOsiug Of tie Remainder IN 'r
Alternative which proved 70 be the TACT OF ther desh
WITHOUT Issue that thus alternative renal DER CO.
tiuued IN the testatOr, which he could and dd dispose "a
nv rho general devise OF the residue % the estate .ha
lie testtors will applied 10 sftorac ulrei Iroi ~ va"
clear from bis reference 10 such worldly gOVas % -
| should leave behind"