The New York herald., 1870-05-25
SUPREME COURT SPECIAL TsHm.
The seward Will se-InipOrtant Decision.
Before Judge CardoZo.

The seward Will Cnsc-lnipOrtant Decision.
Before Judge Cardozo.
Se,Ddrd u.s. Se,odrd. This suit was brought to oh
tain settlement OF the will Of the late Edwin P.
Seward. When he died his property was lett TO the
children of his two brothers, L. p. and G. W. Seward
then born. clause was inserted that any children
born after should have the same share. f. r. Seward
was an Old man at the time and widower. The
executors at his. request divided the property
and gave him his share to support and educate his
family. He married afterwards and had other chill
ircn who claimed their part OF the property and 10
have IL settled what they are entitled 10 is the object
OF the suit.
Judge Cardozo, in his opinion, says:-"The win
prohblted the executors from making The division
OF the estate INTO twenty parts, which the testaor
directed should be done within one year after the
deceasc OF the tesator but, except TO the extent OF
that prohibition, directed such division 10 me made
as soon after his death as convenient. This vested
IN the executors discretion over which, except in
case OF fraud or manifest abuse. this court would
not exercise any control IL Is enough To say that
no such case Is presented here and that in view OF
the fact that the aotments which the were
10 make could not be binding ON the minor
egatees, until tney had opportunity TO acqiesce in
them alter their ma Jory. l cannot say that the
period which the executor allowed to capse be-
tween the time when such acquicscencc took place
and when they actually made the division al
all unreasonable. In respect to the clause Of the
Will which directs that the shares Of Il. f. and G. w
Seward shall open 10 let In after horn children,
think the executors have mIsconsfrued the Will.
40 not mean TO say that do not think II very
children should take. equally witn the othcrs u
share Of the. income accrued prior TO the
birth Of such alter-born. children, but the
WILL while susceptible OF that construction.
also susceptible of the construction that
each child shall share the income arising from the
tme of It's birth, and as IL Is very well settled that
when ono construction Will support and the other
defeat the PROVISIONS OF the viii, that shall, II
sstent with its terms, b. adopted which viii sus-
tain II. think the latter must be held to De tue
right construction IN this case because otherwise
the provisions would be In conflict with the Revised
Statutes which do not permit an accumulation for
The benefit OF persons born after the testaor's
death. 80 far, therefore, rs the accounts OF the
executors and trustees conflict with these views
they VIII have to he corrected. decree
may and should be made for the repay-
mcnt OF such sums shall appear when The
accounts are restated, upon the principles herein
stated to have been paid either Of the defendants,
children Of r. +. or q. W. Seward, over and above
what they are entitled To. If upon the restating Of
the accounts on the principle Indicated shall ap
pear that any overpay have been made de-
cree may be made Tor their retnrn see no reason
why the decree should not direct the immediate pay
ment OF the sums which the paintiIs cOncede TO be
due TO some OF the defendants and as to which
nobody makes any contest. The decree VIII provide
accordingly. decree In conformity with these
views and directing a reference to examine the ac-
counts and 10 estate them far this opinion may
render II necessary, may he prepared by the plain
ti1s counsel ana submitted 10 me lor settlement.