79 N.Y.S. 924 | N.Y. Sup. Ct. | 1902
Action brought under section 1537 of the Code of Civil Procedure for a partition or sale of the premises described in the amended complaint by a daughter and heir-at-law of John C. Hart, deceased, alleging that an apparent devise thereof in his will is void. On May 3, 1872, John 0. Hart died seized of the premises described, leaving a will -and two codicils, admitted to probate in Westchester county, June 5, 1872, and leaving a widow and four daughters, all of age at the time of their father’s death. The widow is now dead, but the four daughters are all living. The testator, after directing the payment of all his just debts and funeral expenses, devised unto his executors the real estate in the city of Hew York owned by him, “hereinafter designated and described as parcels Hos. 1, 2, 3 and 4, and hereinafter denominated and referred to as ‘trust estate,’ and described as follows:” and thereupon follows the description of a number of different pieces of real estate, divided into four parcels. He then provided that if the title to any one or more of the said four parcels during the continuance of the trust should prove defective or become invalidated and the same be lost to and no longer form a part of his estate, then he directed his executors to divide the remaining portion of such trust estate in four equal shares, value and income of the same being considered, “ and the shares of such division shall assume and bear the designation of the original parcels 1, 2, 3 and 4, and be represented and stand in the same distinctive relation to the trust as the original parcels. * * * To have and to hold the same in trust, to let and lease the same * * * to collect the rents, issues and profits of said trust estate, and out of the first proceeds thereof to pay off,, cancel and discharge the mortgage now a lien upon said parcel Ho. 1 and such other .liens, incumbrances and indebtedness tO' which the said whole trust estate at the time of my decease may be subject and charged with.” Thereafter the residue of the rents of each of the four parcels was to be paid to each of the four' daughters during her life. Upon their respective deaths each parcel was given to her children in fee. Upon parcel Ho. 1 there was a mortgage for $22,000. The other parcels were unincumbered. At the time the will was read, on the day of the burial, all of the four daughters and the executors and trustees were present. The conversations then" and at frequent subsequent
Judgment accordingly.