New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1888-12-27
MR.. HILTON OVERRULED,
JUDGE PATTERSON AIDS MRS. SMITH
A LONG DECISION HANDED DOWN AGAINST THE
DEMURRER TO THE REPLY IN THE


STEWART CASE.
Tn ,ho ansver NJ cx.Judge Henry Hilton to the
complaInt of Sarah " Smith, a niece OF MIS- a. L.
stewart in the suit I'm which she demands mat MIS-
Stewards Gift to him Of her interest In the business Vi
A r. Stewart g. Co. be set aside, that no DO rcn'oVeu
from his position as executor OF the Wits Oh oo'" vi
stewart and her husband and TOT o'noi
rclief-one defence set up 'na' ."o
plaintiff has waived her right OF acuon py asson'e
TO the probate OF Mrs. stewart's VIII 10 ',uS 'no
plaintiff inerposcd reply denying that she had tnere
nv abandoned any rights to which she was enuied as
one Of the heirs at-law and next Of KIN
In a long decision handed down yesterday over
ruling ex-Judge IIilton's demurrer TO this repy' JUS
tce Patterson, of the Supreme court says hla' '0
onlv defence sought TO be made available on this DO
murrer Is that under the terms OF Mrs ste"ar's WIN
the plaintiff has no standing In court TO MAINTAIN inc
action. she having conceded in her reply that the VIII
was duly admitted to probate, and is valid nsru'
ment under which she claims her specific legacy ana
her share of the reslduary estate. The Judge con-
tinues as follows
CAS- read the complaint and answer, 1t would APP
pear that the transaction which lies at the fouhdauoh
of the plaintiffs cause Of action was business trans
action between the demurrant and Mrs. stewart and,
as read the third clause Of the second codcli, inc
estarlx merely intended to designate what should De
regarded as her property for the payment OK legaces
and the realization Of the rcsduary estate.
No specific clause Of ratification Is contained In the
WILL but judged by its context that which IS rcIed
upon as ratification is provision solely DESCRIPTIVE
Of what her estate shall be considered as consisting
of for the purposes of distribution.
AT all events the provision relied upon is dis
tnctly open 10 that construction IL the broad pur'
pose and tho intention claimed by the demurrant were
to prevail, 1t would be judicial construction that
every transaction that Mrs. had relating to
conveyance transfer Of property was ratified and
confirmed and every fraud practscd upon her adopted
and condoned, although she were In ignorance that
such frauds had been committed and thus tho execu-
tors would be disabled from maintaining any suit 10
protect the against frauds unknown at the ume
Of her DEATH but discovered after that event such
cannot be the fair and reasonable Interpretation OF
the cOdicil. and of the opinion that the plainur
NAV maintain her action for some portion of the re-
lief demanded in the complaint. notwithstanding the
probate of the Will, her admission of It's validity, and
her acceptance of the benefits accrung TO her thereby
have abstaned from going into recital OF the facts
as set out in the pcadngs for reasons which Will Do
appreciated BY counsel without their being distinctly
stated here The demurrer TO the reply is overruled
with costs" .
Frederic r. Coudert ard Martin & Smith are the
plaintiffs lawyers. and exJudge Leslie W. Russell and
Ellhu Root represent the defendants.