Jones v. Bevillard

• Decision Date: 25 November 1913
• Citation: 209 N.Y. 446,103 N.E. 719
• Parties: JONES v. BEVILLARD et al.
• Court: New York Court of Appeals Court of Appeals

209 N.Y. 446

103 N.E. 719

JONES

v.BEVILLARD et al.

Court of Appeals of New York.

Nov. 25, 1913.

Appeal from Supreme Court, Appellate Division, Fourth Department.

Action by C. Lansing Jones as substituted trustee, etc., against Sarah G. Bevillard, impleaded with Grace Harry and others. From a judgment of the Appellate Division (145 App. Div . 906,129 N. Y. Supp. 1129), unanimously affirming a judgment at Special Term (69 Misc. Rep. 126,126 N. Y. Supp. 181), defendant Sarah G. Bevillard appeals. Affirmed.

Thomas F. McDermott, of Albany, for appellant.

D. C. Burke, of Oneida, William S. Mackie, of Utica, and Oswald P. Backus, of Rome, for respondents.

WERNER, J.

The plaintiff, as sole trustee under the will of George W. Dodge, instituted this action to obtain a judicial construction of the last paragraph of the third clause of the instrument, which reads as follows: ‘And I also hereby authorize, empower and direct my said executors and trustees whenever they or any two of them shall deem it advisable to do so, to pay to either of my children such sum and so much of principal of which they are to have the use, profits and income as above provided, in case of any contingency which they may deem it safe and preferable for them to do so, and for the interest of said child or either of my said children.’ The question presented by the appellant in respect of this clause is whether the power thus given to the three trustees, ‘or any two of them,’ was transmitted to the plaintiff upon his appointment by the surrogate of Oneida county as sole trustee to succeed the three original trustees upon the death of the survivor of them.

[1] Before we reach that question, however, we must decide whether the judgment in a former suit to obtain construction of the same will, brought by the then survivor of the three original trustees, is res adjudicata as to the defendant Sarah G . Bevillard, who is the only appellant in the case now before us .

The testator made his will February 13, 1881, and died on the following 19th of March. He left him surviving a widow, one son, and three daughters. The children were all of age except the daughter Helen, who was then about 20, and all were unmarried except the daughter Algenia A. Snow. The son and the youngest daughter Helen soon married, and five years later the daughter Sarah, the present appellant, also married.

The will first makes provision for the widow in the form of a stated annuity, which the trustees were authorized to increase, not exceeding a specified sum, and they were also directed to purchase a house, if they deemed it advisable, for her use as a home so long as she lived. The executors and trustees were then directed to divide the rest of the estate into 14 shares, and the income and profit thereof was given to the children in the following proportions: To the son five shares, with remainder over to his children in equal shares, to the daughter, Algenia A . Snow, three shares, subject to an advancement of $1,000, which the testator had made to her, with remainder over to her children, and to each of the other two daughters three shares, with remainder over to their children in equal shares.

The first paragraph of the third clause of the will gives the estate to the three trustees for the purposes above stated, with power of sale and investment, and the second paragraph of the same clause, which has already been quoted in full, authorizes the trustees ‘whenever they or any two of them shall deem it advisable to do so, to pay to either of my children such sum and so much of the principal of which they are to have the use, profits and income as above provided, in case of any contingency which they may deem it safe and preferable for them to do so, and for the...