Lammer v. Stoddard

• Decision Date: 23 November 1886
• Citation: 103 N.Y. 672,9 N.E. 328
• Parties: LAMMER and others v. STODDARD, EX'X, etc.
• Court: New York Court of Appeals Court of Appeals

103 N.Y. 672

9 N.E. 328

LAMMER and others

v.STODDARD, EX'X, etc.

Court of Appeals of New York.

November 23, 1886.

Action to enforce a trust. Judgment for defendant. Plaintiffs appealed.

Joseph Lammer died February 27, 1831, leaving a widow, Mary Lammer, and five children, Edward, Fanny, Joseph, Clarissa, and John A., the last three being the children also of Mary, who was his second wife, and being, at their father's death, aged, respectively, seven, six, and three years. Joseph Lammer also left personal estate amounting to upwards of $36,000, and a will in which he bequeathed to his wife absolutely the sum of $2,000, and created a trust, as follows: ‘I give and bequeath unto my said wife, Mary, the further sum of $3,000, lawful money aforesaid, to be paid to her as soon as conveniently may be after my decease; in trust, nevertheless, that she, my said wife, shall have, use, and take the interest accruing, and to arise from the said $3,000 during the minority of my sons Joseph and John, and daughter Clarissa, to be applied for and towards the support, maintenance, and education of my said three children, and to pay to the said children Joseph, John, and Clarissa, as they shall respectively arrive at the age of twenty-one years, the sum of $1,000 each.’‘My will is that the sum of $3,000 hereinbefore given in trust to my said wife, Mary, shall be by her put at interest, by good bond and mortgage security, upon real estate, to be approved of by my executors hereinafter named, and, in case either or all of my said children Joseph, John, and Clarissa shall die during their minority, and without lawful issue, then my will is, and I do hereby give and bequeath unto my said wife, Mary, the sum or sums of money which such child or children would have been entitled to receive if he, she, or they had lived to the age of twenty-one years.’ And he appointed his wife and his son Edward executors of his will. The will was admitted to probate. The executors qualified as such, and filed an inventory, May 24, 1831. The $3,000 for the trust fund was paid to Mary Lammer; and on the seventh day of June, 1831, she loaned $3,000 to one Talbot, and took his bond and mortgage to secure the same, and they were paid June 1, 1833. At the latter date she loaned the same amount to one Smith, and took his bond and mortgage to secure the same, and they were paid February 3, 1836. About the day last named, she loaned Edward Lammer $5,000, and took from him a mortgage dated February 1, and acknowledged February 5, 1836, conditioned to pay that sum, with interest, on the first day of February, 1837. It appears from the recitals in the mortgage that a bond was also given, to which the mortgage was collateral. The real estate mentioned in this mortgage was covered by a prior purchase-money mortgage, given by Edward Lammer, which was foreclosed in 1837, and the real estate was sold upon such foreclosure for an amount which left nothing to apply upon the mortgage given to Mary Lammer.

Edward Lammer was a merchant in New York, and was burned out by the great fire which occurred Deceber 16, 1835, and thereby became financially embarrassed, and unable to pay his debts. A few years thereafter he became solvent, and so continued to the time of his death, in July, 1884, when he left an estate inventoried and valued at nearly $65,000. He was never married, and he left a will in which he bequeathed to his half-sister and brother, Clarissa and John, each $1,000, and gave the remainder of his estate to other relatives. Joseph Lammer died in 1840, and Mary Lammer died December 28, 1870. She always lived in Brooklyn, and Edward Lammer lived in the same city, and in New York; and during 20 years prior to his death he made a monthly allowance of $20 to Clarissa, which,...