Gilman v. Gilman

• Decision Date: 27 November 1888
• Parties: GILMAN et al. v. GILMAN.
• Court: New York Court of Appeals Court of Appeals

111 N.Y. 265

18 N.E. 849

GILMAN et al.

v.GILMAN.¹

Court of Appeals of New York.

November 27, 1888.

Appeal from supreme court, general term, Second department.

The action was for the recovery of real property, tried at the Kings county circuit before a justice of the supreme court and a jury. The plaintiffs stated in their complaint that on the 8th day of February, 1865, they were possessed of two undivided third parts of the mansion-house and lot of Nathaniel Gilman, deceased, known as ‘171 Clinton Street,’ in the city of Brooklyn, having the right to use and occupy the same for their respective lives, subject to the right of Theophilus Gilman and Frazer Gilman to also use and occupy the premises with them whenever they should elect to do so; and, being so possessed, the defendant on the 9th of February, 1865, entered into the premises, and withholds from the plaintiffs the possession thereof, to their damage $100. They demanded judgment for the possession of the undivided two-thirds of the mansion-house and lot, with their damages for the detention. The defendant's answer was a general denial of the allegations of the complaint. The plaintiffs proved that Nathaniel Gilman died in December, 1859, seized of the entire premises, and leaving a widow, Joanna Gilman, and four children by her, as named in the complaint, and will and codicil, which were admitted to probate in the city of New York, May 24, 1861, and in the state of Maine, in June, 1861. They were put in evidence by the plaintiffs. It appeared that the defendant was the eldest son of Nathaniel Gilman by a former wife, and both parties claim under the provisions of the will and codicil,-the plaintiffs under section 1 of the codicil, which is in these words: ‘To my wife, Joanna, so long as she remains my widow, for her own use and occupation, and none other, I give one-third part of my mansion-house and lot in Clinton street, in the city of Brooklyn and state of New York. The remaining two-thirds are to be for the use of such of my children by her as may choose to occupy the same,-those who may thus occupy being required to pay the taxes and assessments thereon, and to keep the premises in repair; but, so long as none of my children may wish to occupy, my wife is to have the use of said two-thirds, as well as of the said one-third, of the premises;’ and the defendant claims under the clause by which the testator gave to his children, and among others the defendant, the rest and residue of his property and estate. The testator declared that the provisions made in the will and codicil for his wife, Joanna, were intended to be in lieu of dower. The defendant offered in evidence (1) a paper dated June 11, 1861, and duly authenticated, by which the widow of the testator waived ‘the provisions made for her in the last will and testament of her husband,’ and declared that she ‘claims dower in the real, and her rights in the personal, estate of deceased, according to law;’ and (2) proposed to show that upon her application provision had been made for her in lieu of the provisions of the will, by the court of probate in the state of Maine, where the testator resided at the time of his death, and where he left real estate and personal property. The offer was rejected as not pertinent to the issue, and to the ruling of the court the defendant's counsel excepted. It appeared that in 1864 the defendant took possession of three rooms in the house in question, another heir of Nathaniel Gilman already occupying a fourth room, leaving the rest of the house unoccupied. In the month of February, 1865, the plaintiffs made a formal demand of the defendant for the possession of the whole house, and required him to move out at once. He offered to leave as soon as he could find another place, but expressed a willingness that they should move in without delay. The upper part of the house was vacant, and all he claimed was a right to occupy a portion of the house then in use. No testimony was given tending to show a demand for less than the whole, and it was in evidence on the part of the defendant that he ‘at no time denied the plaintiffs' right to any part of the premises.’ In the following April he did in fact move out, and has since had nothing to do with them. At the close of the testimony the defendant's counsel asked to go to the jury as to the demand made by the plaintiffs, claiming that, if it was for the whole of the premises, it was not sufficient, but the court refused. He also asked the court to charge the jury, as a matter of law, that plaintiffs could not recover more than one hundred dollars; that being the amount...