Delafield v. Barlow

• Decision Date: 13 December 1887
• Parties: DELAFIELD v. BARLOW et al.
• Court: New York Court of Appeals Court of Appeals

107 N.Y. 535

14 N.E. 498

DELAFIELD

v.BARLOW et al.

Court of Appeals of New York.

December 13, 1887.

Appeal from general term, supreme court, Second department.

This action was brought for the partition of certain real estate situated upon Staten island, and the material facts are as follows: Francis George Shaw died in 1882, at the time of his death owing an undivided two-fifths of the real estate. He left surviving him a wife and four daughters, one of whom is the wife of the appellant Francis C. Barlow. He disposed of his estate, real and personal, by will, in which, after giving certain legacies, and devising his homestead upon a special trust, he disposed of the residue of his estate, as follows: ‘I direct my executors to divide one-half of all the residue of my estate, both real and personal, including the proceeds of all policies of insurance on my life, not otherwise disposed of, into four equal parts, and I give one of said equal fourth parts to my said executors, the survivors and survivor of them, in trust, nevertheless, to receive the rents, profit, and income thereof as the same shall accrue, and to apply the same to the use of my said wife during her life, and, after her death, to apply said rents, profits, and income to the sole and separate use of my daughter Anna, wife of George William Curtis, during her life, and, after her death, to pay over, transfer, and deliver the principal of said one-fourth part, together with any arrears of income, to the heirs of my said daughter Anna, or to such person or persons, or to such uses, as my said daughter Anna may by her will appoint.’ There were similar provisions as to each of the other fourths for the other daughters and their heirs. The other half of the residue he disposed of as follows: ‘ Fifteenth. I direct my said executors to divide the other half of all the said residue of my estate into four equal parts; and I give and bequeath one of said equal fourth parts to my said daughter Anna, one other of said equal fourth parts to my said daughter Susanna, one other of said equal fourth parts to my said daughter Josephine, and the remaining equal fourth part to my said daughter Ellen. Any moneys paid and advanced by me to either of my said daughters, and charged in my books of account as advanced against her share in my estate, shall be deducted without interest from the sum bequeathed to such daughter in this section; and if either of my said daughters shall have died before me, leaving issue, such issue shall have the parent's share; but if either of my said daughters shall have so died without issue, her share of said residue under this section shall go to my heirs or next of kin.’ The seventeenth clause of his will is as follows: ‘ Seventeenth. I hereby authorize and empower my said executors, the survivors and survivor of them, for the purpose of carrying into effect this my will, and the trusts hereinbefore created, to sell, in their discretion, and on such terms as they may deem most advantageous, any or all of my real estate, at public or private sale, and to execute and deliver to the purchasers thereof all the necessary conveyances,’ etc. He appointed his wife, and his three sons-in-law, and his friend, John Greenough, executors of his will and trustees of the trusts therein created. The executors and trustees were made defendants, and it was alleged in the complaint that they were seized and possessed of two equal undivided fifth parts of the real estate sought to be divided. Francis C. Barlow was the only defendant who put in an answer. Upon the trial it appeared that, at the time of the death of the testator, Mr. and Mrs. Barlow had a daughter, Louisa Shaw Barlow, who was an infant still living. Upon the trial, upon affidavits setting forth the facts, Barlow, on his own behalf and on...