Moffett v. Elmendorf

• Decision Date: 20 April 1897
• Parties: MOFFETT v. ELMENDORF et al.
• Court: New York Court of Appeals Court of Appeals

152 N.Y. 475

46 N.E. 845

MOFFETT

v.ELMENDORF et al.

Court of Appeals of New York.

April 20, 1897.

Appeal from supreme court, general term, First department.

Action by Annie Aletta Elwell Moffett against Mary S. Elmendorf and others for partition. From a judgment of the general term (31 N. Y. Supp. 726) affirming a judgment on the report of a referee, with notice of intent to bring up for review an order of the general term affirming an interlocutory judgment made at special term, six defendants appeal. Affirmed.

This action was brought for the partition of certain lands situate in the city of New York, of which Samuel Bowne Duryea died seised on the 6th of June, 1892. He left a wife, Mrs. Kate Duryea, but no descendants, having never had any children. He also left two brothers of the half blood (children of the same father), Pierrepont and Harmanus Duryea, and three cousins named King, who were his only heirs of the whole blood of his mother. His estate consisted of personal property worth nearly $100,000, and many different parcels of real estate, worth in the aggregate about $800,000. On the 18th of June, 1877, he made his last will, the first and second clauses of which are as follows, viz.: ‘First. I give to my beloved wife, Kate Duryea, all my personal property and estate not herein otherwise bequeathed, unless in the contingency of my surviving her, or of her and my decease on the same day, or by occasion of the same wreck or casualty proving fatal to both, and in that case I bequeath said personal estate to my next of kin. The provisions of this will in favor of my wife are made by me, and are to be accepted by her, in lieu of all claims of dower in my real estate, or any portion thereof. Second. All my real estate, except the portions thereof hereinafter otherwise given or disposed of, I give in like manner to my said wife, if I leave no issue; but if I leave any children, living or after born, or the descendants of any deceased child, I give the real property in this clause devised to my wife and such issue in equal shares,-that is, each child, the representative of each deceased child, as a class, and my wife, are, severally and respectively, to take equal shares therein.’ By the third, fourth, and fifth clauses, he made provision for his father, his two half-brothers, and his aunt Sarah A. Duryea. The following is the sixth clause, viz.: ‘Sixth. I give and devise to my aunt Catherine Elwell and my cousins Mary S. Elmendorf, John D. Elwell, Joseph S. Elwell, Cornelius A. Elwell, Annie A. Elwell, James H. Elwell, and Sarah E. Elwell (each to take an equal share therein), my lots on the southerly side of Sixtieth street, between First avenue and Avenue A, in the city of New York; also, my lots on the southerly side of Sixty-First street, between First avenue and Avenue A, in the city of New York; also, my lots and premises now or hereafter known as ‘No. 276 Mott Street,’ in the city of New York, and also my house and lot now or heretofore known as ‘No. 143 Mercer Street,’ in the city of New York.' By the seventh clause he directed his executors to sell certain lands and divide the proceeds equally between nine religious, charitable, and benevolent corporations, and provided that if ‘any of such legatees shall have ceased to exist, or shall be unable to take in whole or in part, or if, for any cause, the bequests to one or more of them shall fail to be effectual, either in whole or in part, the sum or sums bequeathed to them, respectively, shall to that extent be divided equally among those competent to take, and as to whom no such impediment exists.’ The eighth clause is in these words, viz: ‘Eighth. I give to my issue, if any me surviving, or, if I leave no such issue, then to the Brooklyn Children's Aid Society of the city of Brooklyn, all my lots situate on Clinton street, Bush street, Leonard street, Grinnele street, Richard street, Sullivan street, Walcott street, and King street, all situate in the Twelfth ward of the city of Brooklyn, as the wards are now numbered.’ By the ninth clause he gave to Thomas Cumberson, designated as his ‘faithful friend,’ the sum of $5,000, and to each of his servants $200. The tenth clause is as follows, viz.: ‘Tenth. All the residue of my real estate, if any there prove to be, I give and devise to those who may be my heirs at law at the time of my decease, and in the same proportion in which they would have taken if, as to such residue, I should have died intestate.’ By the eleventh clause he appointed six executors, provided for their compensation, and gave them certain directions in relation to the management of his estate; and by the twelfth and last clause he revoked all other wills by him made. About one-half only of his real estate was specifically devised. His debts, together with the expenses of administration, amounted to about $30,000. Two of the devisees named in the sixth clause died before the testator; Catherine Elwell on the 11th of December, 1877, and Cornelius R. Elwell in December, 1887. After the death of the said Catherine, but before the death of the said Cornelius, the testator made a codicil, dated June 2, 1887, whereby he revoked the eighth clause of his will, so far as it related to the Brooklyn Children's Aid Society, but made no further disposition of the lands devised by that clause. The codicil also contained the following provisions, viz.: ‘II. I hereby request my said wife to pay, so long as she lives, the sum of five hundred ($500) dollars annually to the Tree-Planting and Fountain Society of the City of Brooklyn, New York, III. I give and bequeath to the Long Island Historical Society my library and manuscripts. IV. I hereby direct that my remains be buried in the Bowne plot in the Greenwood Cemetery; that my said wife have full charge over said plot, as to all matters and directions. V. I hereby give and bequeath to the Greenwood Cemetery the sum of two thousand ($2,000) dollars, to be retained by it in trust to receive the income thereof and apply the same to the care and maintenance of said plot.’ The library and manuscripts thus given to the Long Island Historical Society were worth about $20,000. The will and codicil were admitted to probate in June, 1892, and again in May, 1893, and subsequently Mrs. Duryea filed a release of her dower. Further facts appear in the opinion.

James W. Gerard, Jr., for appellants Pierrepont and Harmanus Duryea.

Charles R. Westbrook and Eustace Conway, for appellant Elwell.

Edward W. Ditmars, for appellants King.

James G. Flanders, for respondent Kate Duryea.

VANN, J. (after stating the facts).

The plaintiff, who is one of the devisees named in the sixth clause of the will, seeks to partition the lands devised thereby, except such parts thereof as were sold by the testator in his lifetime. Her right to partition is not disputed, and it is conceded that each of the six surviving devisees mentioned in said clause has title to an undivided eighth of the premises in question. The contest arises over the undivided two-eighths devised to Catherine and Cornelius R. Elwell, which are claimed by various parties upon the following grounds: Mrs. Kate Duryea, the widow, claims that the gifts to those decedents lapsed because they died before the testator, and that she takes the estate represented by such devisees as residuary legatee, under the second clause of the will. The defendants Pierrepont and Harmanus Duryea claim that, as brothers of the half blood, they are the sole heirs at law of the testator, and that, the devises having lapsed, they take as residuary devisees, under the tenth clause. The defendants King also claim under the tenth clause, but upon the ground that, as cousins of the whole blood of the mother, they are the heirs at law as to seven-eighths of the estate covered by the devise alleged to have lapsed, because that proportion of the property in question came to the testator by devise, under the wills of maternal ancestors, and that Pierrepont and Harmanus Duryea are not of the blood of those ancestors. The defendant John D. Elwell claims that the gift in the sixth clause was to the devisees therein named as a class, and that the survivors, of whom he is one, take the whole.

It will be convenient to first consider whether the shares in question passed to the devisees of the sixth clause as a class, with the right of survivorship, or, lapsing, fell into the residuum, and passed under one of the residuary clauses. The answer to this question depends on the intention of the testator, which is to be learned from reading the whole will, aided, if there is any ambiguity, by a reference to such extrinsic facts as were known to the testator when he executed it. The mode of the gift is to ‘my aunt,’ giving her full name, and to ‘my cousins,’ giving the full name of each, and adding, ‘each to take an equal share therein.’ Thus, we have a devise to eight persons, each designated by name, with nothing on the face of the will to indicate that they compose a class, or even that they are members of the same family, although it appears from evidence outside of the will that they constituted the Elwell family, consisting of a mother and her seven children. The words ‘aunt’ and ‘cousins,’ as thus used, may properly be regarded as merely descriptive of the persons named, for the purpose of identification, and not as indicating a class. There is no reference in any other portion of the will either to the devisees of the sixth clause, or to the estate devised therein. There is no double description, both by individual names and as a class, nor a gift to a body of persons, uncertain in number, collectively described. The devise was to eight persons, nominatim, in equal shares, with no words necessarily pointing to a class. There is nothing in the rest of the will that bears upon the intention of the testator as to the point under consideration, aside from the residuary clauses which...