4 Keyes 346 | NY | 1868
Daniel Carmichael died September 3d, 1849, leaving the defendant, his widow, and six children, him surviving. The eldest of them (Otis) was the child of a first marriage. He did not live with his father, but lived in Middletown, in this State, where his father provided for him. At the time of his father’s death, he was an invalid, and he died about two years afterward. He married the plaintiff soon after his father’s death, the engagement having been made prior to that event; he left one child. Daniel Carmichael, shortly previous to his death, made a will, of which the following is a copy:
“ Know all men Try these Presents, That I, Daniel Carmichael, now lying ill.at the city of Philadelphia, in the State of Pennsylvania, do hereby make, publish and declare these presents as and for my last will and testament, hereby constituting ■ and appointing my dear wife, Eliza Carmichael, and Isaac Otis, the executors hereof.
“After, the payment.of all my debts, I give, devise and bequeath.all and singular my estate and property, of whatsoever kind, and wheresoever the same may be situate, unto my beloved wife Eliza, for and during the term of her natural life; and from and after her decease, then I give, devise and bequeath the same unto my children, who may be then living, in equal, parts, share and share alike—it being distinctly understood.that the part or share of my son, Otis Carmichael, ' under said division or appropriation, shall be held and invested by my surviving executor, his heirs and assigns, in trust, to keep the same well and securely invested during the life-time of my said son, and to pay over to him, my said son, the rents, income and interest thereof as received, and to dispose of and apply the principal of said share as my said son may by his last will and testament, or any instrument in the nature thereof, direct, limit and appoint. And in default of such direction, then to the right heirs of my said son, under the ■ intestate laws of Hew York.
“DANIEL CARMICHAEL, [l. s.]
“Edwin Coolidge, )
R. S. Barnes, > Witnesses”
Constant Guilloit. )
This will was admitted to probate on or about the 15th of October, 1819, before the surrogate of the county of Broome. Otis Carmichael, previous to his death, made a will, by which be gave to his wife (the plaintiff) the annual sum of $500 during her natural life; and he further gave unto her, in trust, for the maintenance and education of his son, all the annual proceeds of his real and personal property, until his son should attain the age of 21 years. He secondly devised and bequeathed unto his son, all his real and personal property, subject to the annual payments given to his wife.
This action is brought by the widow of Otis, for the purpose of compelling th'e defendant, executrix of the will of Daniel Carmichael, to render an account of his property and effects, which may have come into her hands as such executrix ; and, after the accounting, it is prayed that the same may be divided, and that the defendant be adjudged to pay over to the plaintiff, one-sixth part of the estate of Daniel Carmichael, with interest thereon from January 1,1850.
The defendant demurred to the complaint, upon the grounds, first, that the plaintiff had no legal capacity to sue, and, second, that the complaint does not state facts sufficient to constitute a cause of action.
The demurrer was sustained, both at the Special and General Term.
The v demurrer was properly sustained. The widow of Daniel Carmichael is living, and, by the express provision of his will, she is entitled to all the use and enjoyment of his property during the term of her natural life; and she is under no obligation to account to any of the children, for the purpose of having it divided among them. The estate does not vest in remainder until her death; and then it vests
The judgment should be affirmed, with costs.
Judgment affirmed.
