In re Pulis

• Decision Date: 27 February 1917
• Citation: 220 N.Y. 196,115 N.E. 516
• Parties: In re PULIS et al.
• Court: New York Court of Appeals Court of Appeals

220 N.Y. 196

115 N.E. 516

In re PULIS et al.

Court of Appeals of New York.

Feb. 27, 1917.

Appeal from Supreme Court, Appellate Division, First Department.

In the matter of the application of Abraham Pulis and Sarah Powles for an order authorizing the sale of certain real property in the City and County of New York, known as No. 428 West Thirty-Third Street, devised to them for life by the last will of William J. Pulis, deceased. From a unanimous order of the Appellate Division of the Supreme Court (160 N. Y. Supp. 1143) affirming an order of the New York Special Term, directing the distribution of the proceeds, Martha Powles Merrion and another appeal. Modified and affirmed.

William J. Pulis died on the 22d of May, 1881, leaving a will which was duly admitted to probate. It is as follows:

‘After paying all my lawful debts and funeral expenses, I give and bequeath to my sons-in-law, John H. Bogart and James Remsen, each the interest of five hundred dollard during the term of his natural life, and I direct my executors to place the sum of one thousand dollars in two savings banks, five hundred dollars in each, and to pay the interest as above specified every six months; and I further direct that after the decease of the above named parties, $500 of said principal and whatever interest may be due thereon that time, shall be paid to the children of my son Abraham Pulis, share and share alike, and the other $500 of said principal sum, and the interest that may be due thereon, to the children of my daughter Sarah Powles, share and share alike.

‘I further give and bequeath to Lettie Ann Demarest, daughter of Ann Marie and Daniel Demarest, $300, three hundred dollars. Also to Anna Griffith, wife of Isaac Vail, $200, two hundred dollars.

‘I further give to my son Abraham and my daughter Sarah the use of my house, number 428 West Thirty-Third street in the city of New York to be occupied or rented by them, for their mutual benefit; also all my household furniture, to be equally divided between them, but not sold, and also all the residue of money in banks, or elsewhere after paying the sums as herein directed, to be equally divided between the said Abraham and Sarah.

‘I further direct, authorize and empower my executors within two years after the decease of my two children, Abraham and Sarah, to sell my house for the largest amount that can be obtained for it, and divide the net proceeds of said sale, one half the amount between the children of my son Abraham Pulis, and the other half thereof between the children of my daughter Sarah Powles; and in case the said executors shall have deceased before the time of said sale that the oldest of my son and daughter's children shall, and I hereby authorize and empower them to carry out my wished as herein expressed.

‘In conclusion I hereby appoint as my executors my son Abraham and my daughter Sarah, and in case of the decease of either, my grandson William to act for the deceased. I request that they may not be required to execute bonds for the fulfillment of said trust.’

His son Abraham died November 13, 1912, and his daughter Sarah February 6, 1916; they having enjoyed the use of their father's property during their lives and the life of the survivor of them as provided by the will.

At the time of the death of William J. Pulis, his son Abraham had two children. No other children were thereafter born to him, and both of said children are living. At the time of his death, his daughter Sarah had three children. No other children were thereafter born to her, and two of said children are living.

Sylvester Powles, the third child of Sarah, died February 11, 1904, leaving a widow and two children, both of whom were born after the death of the testator. The real property of which the testator died seised was sold on the application of the said Abraham and Sarah as life tenants in 1912, pursuant to the Real Property Law, and the proceeds of the sale were deposited in a trust company pursuant to an order of the court.

A division of the proceeds of said real property is sought. The Special Term divided one half thereof in equal parts between the children of Abraham Pulis and the other half thereof in three equal parts, one part thereof to each of the two children of Sarah Powles and the third part to the widow and two children of Sylvester, the deceased son of Sarah Powles. The children of Sarah Powles appealed therefrom and from the unanimous order of the Appellate Division affirming such order of the Special Term. Matter of Pulis, -- App. Div. --, 160 N. Y. Supp. 1143.

The division between the children of Abraham Pulis is not contested. The children of Sarah Powles claim that the widow and children of their deceased brother, Sylvester, are not entitled to participate in the division. No question is raised as to the division between the widow and children of Sylvester if the half of the proceeds of the real property representing the testator's daughter Sarah is divided into three instead of two parts.

Hogan, Cardozo, and Pound, JJ., dissenting.Lloyd Paul Stryker, of New York City, for appellant Martha Powles merrion.

Albert R. Hager, of New York City, for appellant Margaret Powles Zabriskie.

Alfred S. Brown, of New York City, for respondents Davis and Cole.

Stewart Chaplin, of New York City, for respondent Daniels.

CHASE, J. (after stating the facts as above).

[1] The intention of a testator as disclosed by his will and in the light of the circumstances surroundinghim at the time it was made should, so far as consistent with the rules of law, control the courts in construing it.

It is, as has been said so many times, the cardinal rule in the construction of wills that the intention of the testator should be ascertained, if possible.

If the intention of the testator is ascertained with reasonable certainty and the provisions of the will are valid, it is quite unnecessary to discuss the decisions made in other cases. Cammann v. Bailey, 210 N. Y. 19, 103 N. E. 824.

A careful examination and consideration of the language of the will before us is important to determine the testator's intention.

[2] The testator at the time of making his will had other children than his son Abraham and his daughter Sarah, or at least he had had other children than those two. This appears from the small gifts in trust for two persons named whom he...