Clemens v. Clemens

60 Barb. 366 | N.Y. Sup. Ct. | 1867

Ingraham, J.

There are various objections taken to the granting of this motion. Such of them as I think material I will notice specially.

An objection is taken to the omission of one of the persons claimed to be trustees under the will, as a party. At the time of bringing the suit, he was alive, but had disclaimed acting as trustee. This was in an answer in chaneery, in Missouri. His subsequent death without ever assuming the trust, or claiming a right to act, would make valid that disclaimer, so far as it became impossible for him to act, and vested all the estate in the surviving trustee. He was bound by the decree in chancery, and the death of Collier having made him (the survivor) sole trustee, the estate vested in him, and the cestuis que trust .would be bound by that decree.

I have examined this will with some care, and the opinion submitted of Judge Bonney, and have come to a conclusion, but with much hesitation, contrary to that expressed by him. Nearly all of the principal provisions in the will are conceded to be void. These lots are included in the devise to trustees. The objects of that trust, as to charity, as to accumulation, as to the limitation of more than two lives, and some of the other provisions, are clearly void, under our laws, and could not be enforced here. It seems to me that these provisions are so connected with the whole trust, and dependent upon their connection with the residue, that no part of the trust could be carried out without working injustice and giving to a portion of the family a larger share of the estate than was intended, if the whole trust could have been sustained.

To hold the devises to some of the children good, while the rest of the will is declared void, would be to increase largely the portions to some of the children, and decrease the portions to others. This does not seem to be consistent with the general intent of the testator; and his objects would be much better carried out by declaring the whole void than by sustaining only small portions of the instrument.

These views render it hardly necessary to examine the questions as to the existence of the will in Missouri. I cannot see, however, in what way that will can be proved in this State. After a lapse of thirty years, it can hardly be supposed such an attempt would be made. The handwriting cannot be proved without the production of the original; and it seems to be at least improbable that a will, under such circumstances, could in any way be admitted to probate.

[New York Special Term, April 30, 1867.

The proceedings in the partition suit would bar these parties, also, from any further claim under the will; unless there are such irregularities in the proceedings as. would make the judgment or decree therein rendered void. The only objection requiring .examination is as to the nonappearance of the infant defendants by guardian. The proceedings were in accordance with the act of 1831, which allowed of proceedings by publication against infant defendants who were non-resident. In such cases it was not necessary to appoint a guardian, unless they appeared.

The act of 1833 I do not think applicable to cases of non-residents; but it provided for cases where infant defendants were served and did not appear. In such cases, the court could, on application, appoint guardians for them. Even if otherwise, it is but an irregularity, which should have been moved for much earlier than this day. The children have for some years been of age. A motion made now would be denied, on account of the delay.

Upon the consideration I have been able to give to this case, I am of the opinion there is no valid objection to the title.

Motion granted.

Ingraham, Justice.]