Salisbury v. Slade

• Decision Date: 03 October 1899
• Parties: SALISBURY v. SLADE et al.
• Court: New York Court of Appeals Court of Appeals

160 N.Y. 278

54 N.E. 741

SALISBURY

v.SLADE et al.

Court of Appeals of New York.

Oct. 3, 1899.

Appeal from supreme court, appellate division, Third department.

Action by Edwin B. Salisbury against Benjamin J. Slade and others for partition. From an interlocutory judgment for plaintiff, defendant Slade appealed to the appellate division, which affirmed the judgment (48 N. Y. Supp. 55), and certified questions to the court of appeals. Reversed.

Charles S. Lester, for appellants.

Thomas O'Connor, J. W. Houghton, and George B. Lawrence, for respondents.

BARTLETT, J.

Benjamin Slade, deceased, the father of Benjamin J. Slade, the defendant, the ancestor in title of the parties, died in 1875, seised of two farms located in the county of Saratoga, and leaving, him surviving, a widow and seven children,-three sons and four daughters. He left a last will and testament, which was admitted to probate. Its material portions read as follows: First. (Provides for payment of debts.) ‘Second. I give and bequeath unto my beloved wife, Angeline,all my household furniture, of every name and kind, together with the use and occupation of the house in which I now reside, with the lot of land adjoining [describing it], for and during her natural life, or so long as she remains my widow; afterwards to be divided among my children as hereinafter provided. Third. I give, devise and bequeath unto my children, Sarah A., Benjamin J., Jane F., Catharine A., John D., Anna M., and Fayette, all the rest, residue, and remainder of my estate, real and personal, to be divided equally between them, share and share alike, to have and to hold to them, their heirs and assigns, forever, except that the shares to my daughters, Sarah A., Jane F., Catharine A., and Anna M., aforesaid, shall remain and be held by my said executors hereinafter named in trust for them during the natural life of each of them, the use, income, and interest arising therefrom to be paid semiannually to each of them, and, upon the decease of either, the share belonging to the one so dying to be paid to her children, and except, further, that the balance of the home farm on which I now reside, the use and occupation of which has not been given to my said wife, shall not be sold or divided up during her natural life, or so long as she remains my widow, but shall be held by and remain in charge of my executors, and be by them managed for the best interest of my estate, and out of the rents, profits, and income of the same I order and direct them to pay unto my said wife, so long as she remains my widow, an annuity of two hundred dollars, in quarterly payments, from my decease. Lastly. I do hereby nominate, constitute, and appoint my son Benjamin J. Slade and my son-in-law Nathan P. Gates executors of this, my last will and testament, hereby revoking all former wills by me made.’ The widow survived but three years, dying in 1878. In 1879 an action for partition of the premises involved was brought by the defendant herein, Benjamin J. Slade, to which all of the seven children of his father, Benjamin Slade, deceased, were made parties, and also Nathan P. Gates, who, with the defendant Benjamin J. Slade, were testamentary trustees under the will of Benjamin Slade. That action duly proceeded to final judgment and sale, and the defendant herein, Benjamin J. Slade, became the purchaser in January, 1880. The sons of Benjamin Slade and their grantees received their share of the proceeds of the sale in money. The shares of the daughters were held in trust by the trustees, and the daughters have received, and the surviving three are receiving, the income of their respective shares. For 14 years this judgment in partition had stood at the time this action was begun, and none of the three sons, four daughters, or husbands of the latter, had ever challenged its correctness, or the sale under it. The plaintiff in the present action is the son of Jane F., one of the daughters of Benjamin Slade, who died December 24, 1893. This action was begun May 1, 1894; the plaintiff then being 33 years of age, and he having for more than 10 years after attaining his majority refrained from attacking the judgment in the original partition suit. After the death of his mother, who for years had received the benefits of the original judgment, the plaintiff began this action, claiming that he and his three brothers were remainder-men of the one-seventh of Benjamin Slade's estate, subject to the devise in trust to the executors for the life of his mother; that the trust ceased at her death, and that his share of the estate, one twenty-eighth, vested in him in fee and possession under the will, as he had not been made a party to the original partition suit in 1879, and was not bound by the judgment entered therein.

The court below has sustained this possition of the plaintiff, and certified to us the single question: ‘Whether at the time of the commencement of this action the plaintiff had any estate in the lands described in the complaint.’ The respondents' counsel admits in his brief that this question involves only a construction of the will of Benjamin Slade, but nevertheless insists that the answer of the appealingdefendant admits plaintiff's title, and that this court will not consider the abstract question growing out of the provisions of the will which is the common source of title. The respondents' counsel further states in his brief that, while the appellate division decided the case in favor of the respondents without going into the question as to the sufficiency of the pleadings, yet that question was raised by the briefs of counsel in the court below, and was properly before it, and would have been sufficient to authorize an affirmance of the judgment, had it not chosen to decide the question upon the merits.

As the question certified lies at the foundation of this action, was alone considered by the appellate division in its opinion, and is submitted to us, we are called upon to answer it. We are asked to determine the status of plaintiff ‘at the time of the commencement of this action,’ and our sole duty is to construe the will of Benjamin Slade. That instrument is not lengthy, and the principles controlling its construction are well settled. A careful examination of the provisions of the will is necessary to ascertain the intention of the testator, and the testamentary scheme he had in mind. In the second subdivision thereof he devises to the widow the use and occupation of the house in which he resided, and the lot of land adjoining, for and during her natural life, or so long as she remained his widow, and ‘afterwards' this real estate was to be divided ‘among my children as hereinafter provided.’ The third subdivision of the will supplements these provisions for the widow by providing that the real estate devoted to her use ‘shall not be sold or divided up during her natural life, or so long as she remains my widow, but shall be held by and remain in charge of my executors, and be by them managed for the best interest of my estate, and out of the rents, profits, and income of the same I order and direct them to pay unto my said wife, so long as she remains my widow, an annuity of two hundred dollars in quarterly payments from my decease.’ The remainder of the third subdivision, being the first part thereof, discloses the balance of testator's scheme, and it reads as follows: ‘I give, devise, and bequeath unto my children [naming three sons and four daughters] all the rest, residue, and remainder of my estate, real and personal, to be divided equally between them, share and share alike, to have and to hold to them, their heirs and assigns, forever, except that the shares to my daughters [naming the four] aforesaid shall remain and be held by my said executors hereinafter named in trust for them during the natural life of each of them, the use, income, and interest arising therefrom to be paid semiannually to each of them, and, upon the decease of either, the share belonging to the one so dying to be paid to her children. * * *’ Then...