4 Paige Ch. 336 | New York Court of Chancery | 1834
The first question to be examined in this cause is, whether Margaret Lent, at the time of her death, 'Was the owner of the whole lot, or was only entitled to the sixth part thereof as one of the heirs at law of her mother, who died in 1784. If Ann Brewster, the grand niece of Margaret Lent, was to be entitled to a share of her property under the statute of descents, then it can make no difference
Under the statute of descents of 1786, (1 R. L. of 1813, p. 52,) the estate of Margaret Lent descended to her surviving brother and sister, and to the several children of her deceased brother and sister; the children taking, by representation, the shares which would have belonged to their deceased parents, if living. But under that statute no representation was allowed among collaterals beyond brothers’ and sisters’ children. (See Rev. note to § 8 of ch. 2, pt. 2.) This principle of representation among the descendants of brothers and sisters, however, is changed by the revised statutes, so as to extend to all lineal descendants of a brother or sister, however remote. (1 R. S. 752, § 8, 9.) The decree must further declare that Ann Brewster, the grand piece of Margaret Lent, took nothing by descent from her, and that the infant defendant, Richard Woodhull, has, therefore, no interest in the premises.
Mrs. Hannan, under the will of her late husband, had a right to elect either to take her dower in. his real estate, or to take the annuity and legacy given to her in lieu of dower. And if she has not already made such election by accepting the provision made for her by the will, she must now elect whether she will take the one or the other. If she elects to take her dower, the decree must declare that she is entitled to an estate, in fee simple, in two twelfths of the premises, and to an estate for life, as tenant in dower, in one third of the five twelfths of the premises which belonged to her husband at the time of his death.
The question then arises as to who is entitled to the residue of those five twelfths under the will of Alexander Han-
The rule, that the intention of the testator, so far as it can legally be carried into effect, should govern in all devises of real estate, has always been acted upon by courts of justice; except in two or three special cases, where technical rules of law have been permitted to defeat such intent. The revised statutes having abolished the rule in Shelly’s case, which formed one of those exceptions, and having also restored the expressions, “die without issue,” and “die without leaving issue,” to their natural and obvious meaning, courts of justice are now left free to give such a construction to the language of a testator in his will, as to carry into effect his intention, so far as the same can be collected from the whole instrument; provided such intention is not illegal. Indeed it is now expressly provided by statute that the intent of the party shall govern, as well in the construction of deeds of real estate, as of wills.
By the common law, a devise to a man and his children as an immediate gift to both, was held to be a devise to the parent and children jointly, or to give an estate tail to the father, according to circumstances. If there were children in existence at the time, it was held that they took jointly with the parent; but if there were none, he took an estate tail by implication. If, however, it appeared from the will that the intention of the testator was, that the children should take the estate only by way of remainder after the death of the pa
The proper parties are not before the court, to enable me to make a decree for an account and satisfaction, of the rents and profits of the premises which accrued previous to the death
The master is to take an account of the rents and profits of the premises received by any of the present parties to this suit, since the death of Alexander Hannan. And in taking such account, he is to allow to such parties as an offset against the rents and profits received, any sums which may have been paid by them for taxes or assessments upon the premises, or for keeping the same in ordinary repair. The case of Mumford v. Brown, (6 Cowen’s Rep. 475,) was decided upon a different principle. There one tenant in common was attempting to charge his co-tenant, in an action of assumpsit, upon an implied promise to pay for repairs which he had never authorized; and where, from the circumstances of the case, no such implication could arise. But when a mortgagee, or a tenant, in common, in possession, is called upon to account for the rents and profits of the premises, he is chargeable with the net amount of such rents and profits only, after allowing-for necessary reparations upon the premises, and the taxes and assessments charged thereon, which have been paid by
The investigation respecting the title to the lot in question must necessarily have been gone into, for the purpose of ascertaining the rights of Richard Woodhull, the infant. There is, therefore, no sufficient reason for charging the expense of that investigation upon the share which now belongs to the devisees or Catharine Raborg. But as the complainants had set out the rights and interests of all the parties correctly in the bill, it would be inequitable to allow the representatives of Mrs. Raborg the extra costs which she made herself by her answer, as .a charge against the fund to be raised on the sale of the lot. In the taxation of the costs, therefore, her solicitor must only be allowed such costs as he would have been entitled to, if she had suffered the bill to be taken as confessed.
It is evident that the property cannot be divided without great prejudice to the rights of the parties. It must, therefore be referred to a master residing in New-York, to inquire as to specific liens upon the undivided shares of the several parties, and to give the usual notice to persons having general liens, to come in and prove them before the master. The master must also compute the amount due to the personal representative of A. Hannan, deceased, for the principal and interest on the separate bond, and the several bonds and mortgages of Margaret Lent; and he must also ascertain and report whether either of the parties now before the court is such personal representative. He must also take an account between the parties as to the rents and profits of the premises since the death of A. Hannan, upon the principles above stated. And all further questions and directions are to be reserved until the coming in and confirmation of the master’s report; when the complainants are to be at liberty to bring the cause on, upon any regular motion day, or in term, for the usual decree for a sale of the premises and a distribution of the proceeds.