Lawrence v. Cooke

• Decision Date: 08 March 1887
• Citation: 11 N.E. 144,104 N.Y. 632
• Parties: LAWRENCE, an Infant, etc., by Guardian, v. COOKE.
• Court: New York Court of Appeals Court of Appeals

104 N.Y. 632

11 N.E. 144

LAWRENCE, an Infant, etc., by Guardian,

v.COOKE.¹

Court of Appeals of New York.

March 8, 1887.

Appeal from an order of the supreme court, general term, First department, reversing judgment of special term.

W. R. Darling, for appellant.

Henry W. Johnson, for respondent.

RAPALLO, J.

The grandfather of the plaintiff, (Chauncey L. Cooke,) by the sixth and seventh clauses of his will, which took effect in December, 1878, devised and bequeathed his residuary estate as follows: ‘(6) The residue of my estate, both real and personal, of whatever name or kind, I give, devise, and bequeath to my daughter Sara L. Cooke, to have and to hold the same unto her, and her heirs and assigns, forever. (7) I commit my granddaughter Annie C. Lawrence, child of my daughter Annie, now deceased, to the charge and guardianship of my daughter Sara L. Cooke, in whose honesty, good-will, and integrity I repose the utmost confidence. I enjoin upon her to make such provision for said grandchild out of my residuary estate now in her hands, in such manner, at such times, and in such amounts as she may judge to be expedient and conducive to the welfare of said grandchild, and her own sense of justice and Christian duty shall dictate.’

The complaint alleged that in the month of March, 1880, and in the month of January, 1881, the plaintiff, through her general guardian, who was her father, requested the defendant to make, out of the estate so devised and bequeathed to her, provision for the plaintiff, but that the defendant had neglected and refused so to do; and demanded judgment that by the terms of the will a trust was imposed upon the defendant in favor of the plaintiff; that the defendant render an account of the residuary estate, and the income thereof; and that the court should determine and make such provision for the plaintiff out of said residuary estate as should be conducive to the welfare of the plaintiff, and that a receiver should be appointed of such residuary estate, etc. The defendant, by her answer, denied that any trust was created by the will, but also denied that she had refused to make provision for the plaintiff. She admitted the full force of the moral considerations in favor of the plaintiff arising from the will, and averred that she intended, and had always intended, fully and in good faith to comply with the same.

The action was tried at special term, before LAWRENCE, J., who held that no trust was created by the clause referred to, and that the defendant took, under the will of her father, an absolute title to his residuary estate, and he dismissed the complaint. His judgment was reversed at the general term, and a reference was ordered to ascertain the amount of the residuary estate, and report what provision should be made for the plaintiff out of such residuary estate. The referee reported the proofs taken before him, and that, in his opinion, the sum of $1,080 per annum would be a proper provision to be made for the plaintiff until she should attain the age of 14 years. This report was confirmed by the court, and judgment was rendered that the defendant pay that sum to William H. Lawrence, the father and general guardian of the plaintiff, until the further order of the court.

Full and exhaustive opinions were delivered both at special and general terms, in which the authorities bearing upon the question are reviewed at length. Without going over the ground covered by those opinions, we deem it sufficient to say that we concur in that of...