The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1871-10-03
He COUR s.
Important via Case Decis.on-opening Proceed
mgs Of Oyer and Terminsr-The Clarke viii
case-Business in the General Sessions.
UNITED STATES CIRCUIT COURT.
Important VIII Case-Declsion by Judg

kbDP0rtuut VIII Oase-VectSlOu Oy Judge
Elatchford.
Judge Blatchlord has rendered his decision In the
case OF George Augustus Clarke and Jeanet vir.
ginia Clarke, infants under the age Of twenty-one
years, by Reuben Middleton, their guardian and
next friend, VS.. James b. Johnston and Adam
Eorrie. as executors Of the last VIII ana testament
Of james Boorman, The prayer OF the bill IN this
case Is that the defendants as executors OF the last
will and testament OF James Boorman, may come
10 just and far account OF the settlement OF the
estate of James r. Smith, the greatgrandather OF
the pialntirs, James Boorman having been an ex-
and testament Of james h. smith, and may be
alleged 70 have accrued to them under the viii of
James r. smith. or, II that be impossible 10 pay TO
estate alleged to have accrued to Them under such
legacy. Mr.. James r. Smith was merchant in the
ely Oh New YORK; He died early IN June ISL. he
executed Nav 60, 1917 which were duly probated
before the surrogate OF New YORK county, June II,
four ch;ldren-Jeane;, then the wife OF the
Rev. John Clarke and who then n saa
clarSe VINO WAS the father Of the plaintiffs;
hannah, then the wife OF Mathew st; Char Clarke,
and who then had children living: Elizabeth, then
. minor and unmarried who afterwards became
The wiIe Of Joseph Duncan. and James Y. H., then
Inc nature Of the various S1eS devses Of the will anu
goes on TO say that the question involved In tins
The paInsis Contend that by the viii and the codi
eli the residue Of the estate Of James r Smith, after
e Of de1s and devised 70
among his four children, share and share
alike, and 10 their respective heirs; ,nat a.
iee that each OF the three daughters to take
life essate In the other twosnirs OF such onefourth,
with remainder over AFTER such life estate to her
death the fee ' Of such twoairds Of his deceased
wites one fourth was 70 go TO her child or children
they died before that age and without issue, then to
the other children OF the testator or their surviving
Of me share OF Inc pas aos
IN which two.rnirds the plaintffs claim that their
Grandmother had NE estate. and which fee they
claim passed to their father on the decease OF their
grandmother. They alege that James BoormaD,
Dy bis acts, as executor in willul default in con-
junction with Mathew ST. CLAIR Clarke, acting as ex-
ecutor in like wlfu default, placed two-thirds OF
tne share OF the paintas grandmother. Jeanet,
such position that the title TO snch real estate
passed into the hands OF bona dde purchasers for
the pain;is and their father were deprived thereof
entirely and that therefore, the estate OF James
for sncn breach Of trust in the present
value value % o. the porperv Of which they have
other particulars relating 70 the proceedings of
Boorman and 81. Clair Clarke as executors Of the will
TO other OF e s wn se ne
hrst question 10 lie determined is the proper con.
strncton Of the provision Of the twelfth clause Of
the codlch as to the twO-thtrds Of each daugh-
ter's share dis Honor further says that 1t Ia I'M
possible 10 say that there is any one Of the provi
sions oil the win, which he speeches. or in any part
OF the codici the expression or intention, on the
part OF the testator, that there should be q
daughter who should survive her hus-
band. The tHQthlrds Of the daughters
may not be liable for ner husbands debts, and SO
shat II he survives her, he may have ms income Ql
such two-thirds IS freed from ali possibilities IN
favor OF her children and remains subject only the
contingent provision In favor Of the other children
the part OF the plantin that they have cause OF
action unless Jeanet Clarke took only life estate
DEATH such twO-thirds passed to the Tfaintnis'
father AZ the twothrds OF her share did not pass
TO the plaintiffs father IL follows that tue bill must
be dismissed, with costs.