Hamlin v. Stevens

• Decision Date: 18 December 1903
• Citation: 69 N.E. 118,177 N.Y. 39
• Parties: HAMLIN v. STEVENS et al.
• Court: New York Court of Appeals Court of Appeals

177 N.Y. 39

69 N.E. 118

HAMLIN

v.STEVENS et al.

Court of Appeals of New York.

Dec. 18, 1903.

Appeal from Supreme Court, Appellate Division, Fourth Department.

Action by Charles A. Hamlin, administrator of Lyman Stevens, against Julia E. Stevens and others. From a judgment of the Appellate Division affirming a judgment of the Special Term (79 N. Y. Supp. 1133) construing the will of Lyman Stevens, Lyman A. Stevens appeals. Affirmed.

Theodore E. Hancock and Thomas K. Smith, for appellant.

Homer Weston and Waldo Weston, for respondent.

VANN, J.

This action was brought for the construction of the will of Lyman Stevens, deceased, with reference to certain questions not material on this appeal. The appellant was not made a party in the first instance, but he was permitted to come in as a defendant, and to raise two issues: (1) That according to the terms of the will, when considered in the light of surrounding circumstances, he was one of the residuary legatees; (2) that he was entitled to one-third of the residuary estate by virtue of a contract alleged to have been made in his interest between his father and the testator when he was an infant. The Special Term found against him upon both issues, and the judgment entered accordingly was affirmed by the Appellate Division, one of the justices dissenting. From the judgment of affirmance Lyman A. Stevens appealed to this court.

The will was drawn by the testator himself but two days before his death. He first bequeathed to Lyman A. Stevens, whom he described as his ‘nephew,’ the sum of $6,000, and by the next clause he devised to his ‘oldest daughter Mary L. Hamlin’ a house and lot in confirmation of a former informal gift, and gave her a legacy of $2,000. He then devised to his ‘second daughter Grace S. Loomis,’ also in confirmation of a former informal gift, a house and lot, and bequeathed her $2,000 in money. His fourth gift, of $1,000, for the benefit of a religious organization, was followed by the residuary clause, whereby he instructed his executors ‘to administer, execute and keep employed all that remains of my estate for the use, benefit and comfort of my beloved wife Julia E. Stevens during her natural life, * * * and at the decease of my wife the residue remaining of my estate shall be divided equally between our children or their heirs.’

The first claim of the appellant is founded upon the words ‘our children,’ as used in the residuary clause. The only natural children of the testator were the two daughters named in the will, but the appellant contends that it was the intention of his uncle, in using the words ‘our children,’ to include him as one of his residuary legatees, because from the time he was 11 years old he was treated as an adopted child, although never formally adopted. The trial court found that the testator clearly distinguished in his will ‘Lyman A. Stevens as a nephew, and his daughters as his children, and the words ‘our children,’ as used in the residuary clause in the will, were not intended to and do not include the defendant Lyman A. Stevens, and he is not entitled to share in the residuary estate of the decedent as a child under said terms.' We think this conclusion was right, for the testator described the appellant as his nephew, not as his son. He referred to his own children as his ‘oldest daughter’ and his ‘second daughter,’ and finally in the same sentence in which he made provision for his wife he directed that upon her decease the remainder of the estate should be divided equally between their children. Although there was evidence tending to show that the testator treated the appellant as his son, and often spoke of him as his son, still his description of him as his nephew shows that he did not intend to include him by the use of the word ‘our’ as one of his children. That word referred to himself and wife, and it was natural to use it in referring to their children, especially as it occurs right after the thoughtful provision made for his wife and in connection with his tender allusion to her. As this point was not pressed upon the argument, it needs no further discussion.

The main reliance of the appellant is upon the alleged contract. The trial judge found that the testator ‘never made a contract with the defendant Lyman A. Stevens, or with his parents, whereby and wherein he agreed to give to the said Lyman A. Stevens any share of his property at his decease, and that there is no clear and convincing evidence establishing such a contract.’ As this finding was based on conflicting evidence, we are not asked to review it, but we are asked to set it aside and grant a new trial, because incompetent evidence was received by the trial court, although duly objected to by the appellant. In order to decide the points raised, it becomes necessary to state the leading facts. The testator died on the 16th of October, 1891, leaving a widow, said two daughters, and an estate valued at $65,000. The appellant is the son of Leonard Stevens, a brother of the testator, and his wife, Sarah, who lived in Huron county, Ohio. He resided with his parents until April, 1869, when, at the age of 11 years, he came to Syracuse, and lived with his uncle, the testator. ‘From that time onward,’ as the trial justice said in his opinion, ‘he formed a part of the family of Lyman Stevens, and seems to have been treated with all the regard and affection of a son. He was reared, educated, and clothed by his uncle, and on his part seems to have repaid the latter for his care by affection and gratitude and by services similar to those which a child would have rendered to a father. He helped his uncle about his farms and about his business, and the uncle often referred to him as his righthand man and as his son. On several occasions he stated that he knew no difference between Lyman and his other children, and that he should make no difference between him and them when he came to divide his estate.’ When he was 19 or 20 years old, the testator paid him wages at the rate of $10 a month, and after he became of age $15 a month, and charged him with all sums paid to him or for his benefit. His board was without charge. Leonard Stevens, his father, died a good many years ago, but his mother, who was 77 years old when her deposition was taken before the trial, testified that in the fall of 1868 the testator, while on a visit to his brother in Ohio, ‘asked if we were willing that Lyman, his namesake, should come to live with him as his own son. He said that, if we would allow him to come and live with him until he was twenty-one, he would educate him, and he should share in whatever earthly wealth he had at his death. The subject was then dropped. In January, next year (1869), brother Lyman came to visit us again. * * * My husband suggested that in such a matter we should have some legal papers. My brother-in-law stated that he could not see the necessity of any such a thing; that he considered his word just as binding as any papers that could be drawn up. He said: ‘You need have no misgivings. I shall always regard him as my own son, and always treat him as such.’ He said that whatever worldly wealth that he should have to dispose of at the time of his death they should share and share alike, his two daughters and Lyman.' She further testified that between January and April, 1869, two letters came from the testator, which, after due search, could not be found. When asked if she could give the contents of those letters she answered, ‘Not exactly.’ When asked if she could give the substance of the letters, she answered, ‘No.’ The examination then continued: ‘Q. You may give the substance, if you can, of those letters. A. They told how pleased his wife and family were that Lyman was coming. Q. Did he state anything as to how he would dispose of his goods? A. He should have anything that money would buy, his education, etc. I do not think he said anything in those letters as to how he should dispose of his earthly goods. Q. What were you going to say? A. He repeated in those letters that he should be treated as his own son, and whatever he had should be equally divided between him and his two daughters. His words were that they should share and share alike.’ The appellant testified that when he was 20 or 21 years of age his father showed these letters to him, and he remembered that each contained the statement ‘that, if I was allowed to come and live with my uncle until I was twenty-one years old, I should share equally with Mary and Grace in whatever property he had to dispose of at the time of his death.’ He could not state anything else that the letters contained, except that they were signed by his uncle, and addressed to his father, and possibly to his mother. Three letters from the testator to Mr. and Mrs. Leonard Stevens were read in evidence, one without date and the others dated respectively April 8 and 27, 1869. The one without date was apparently written at about the same time as the others. They all referred to the appellant, spoke of him with affection, and in one of them the testator wrote: ‘If he [meaning the appellant] could stay with us, nothing would be spared on the part of any of us to do the very best we could for him. We have furnished a room in the best manner for him,...