60 Barb. 163 | N.Y. Sup. Ct. | 1866
This is an action for partition. The parties all claim under the will of William Spier, bearing date May 24, 1821, to which a codicil was added October 4, 1830. The testator died in 1833. The clause of the will on which the title of these parties, to the lands in question, depends, is as follows : “I give my eldest daughter, Polly Guernsey, in addition to what I have already given her, a lot of land containing thirty-five acres, together with all the privileges and appurtenances belonging, or in anywise appertaining, (except where, on any part of the premises, I have heretofore given a release, or by any means discharged my right.) ' The lands lie in the town of Norwich, county of Chenango, State of New York, whereon Peter B. Guernsey now resides. I will that the above described premises be for the use of my daughter Polly Guernsey during her natural life, then to be equally divided amongst her now surviving children, or any of them that may be alive at her decease, or the heirs of any that may be dead at the time of executing this my last will.”
In May, 1821, Polly Guernsey had four children, Peter
The plaintiffs claim that, under the will and the said conveyance, the children of Polly Thompson are, together, entitled to one equal third part of the premises, (each of said children being therefore entitled to one seventh of one third thereof,) and that William G. Guernsey and Lavinia Guernsey are each entitled to one equal third part thereof. While the defendants William G. Guernsey and Layinia Guernsey claim each one half thereof, and. deny that the children of Polly Thompson have any interest therein.
The claim of the plaintiff's was sustained at special term. The plaintiffs also asked for and obtained an accounting against William G. Guernsey, Lavinia Guernsey and James G. Thompson, which was had. From the judgment rendered, or portions thereof, the three defendants last named have severally appealed.
The first and most important question presented by the appeals is, whether under the will of William Spier, the children of Polly Thompson took any interest in the premises. The testator gives the land in question to Polly Guernsey for'life, “then” in the language of the will, “to be equally divided amongst her now surviving children, or any of them that may be alive at her decease, or the heirs of any that may he dead at the time of executing this my last will”' It is under the last clause, “ or the heirs of
"What then, did the testator mean by the words “at the time of executing this my last will.” If he meant the time of signing and publishing it, the Thompson heirs cannot come in under the devise, for their mother was not then dead, and they were not then born. But we are at liberty to inquire whether he used the words in this technical sense or not, (DeKay v. Irving, 5 Denio, 646, 655,) and it is clear, I think, that this could not have been his meaning. The language may have another meaning, to wit, the carrying into effect the provisions of the will. “ To carry "into effect,” is one of the definitions of the word “ execute.” Hence the word executor means, according to Worcester," citing Burrill, “ one who is appointed by a testator, in his last will and testament, to see and take care that it is executed, or carried into effect after his decease.” It was executing, in this sense, that the testator meant. He was providing for a future event; “ then,” that is, on the decease of Polly Guernsey, “to be equally" divided among her now surviving children,” (meaning all her then living children, being all the children she éver had, so far as appears,) “ or any of them that may be alive at her decease,” still looking to the future, and then comes this clause, “ or the heirs of any that may be dead at the time of executing this my last will.” The word “ any,” in this clause, according'to the natural construction, refers to the previous subject, “her now surviving children,” and under such construction cannot refer to children of bis daughter Polly who had previously died, if indeed there were such. But none of her children had then died, so that, in point' of fact, the testator could not have intended to refer to the heirs of any who were then, at the time of making and publishing the will, dead. Hor can we con-
In the connection in which the words occur in the clause
The construction given to the devise at the special term was manifestly the correct one, and should be upheld.
There can be no doubt that the accounting ordered between these tenants in common was proper in this case.' This is not the statutory proceeding for partition, but a suit in equity; and therefore, as the court has jurisdiction of the subject matter and the parties in interest, it is in ■ accordance with a well established rule, that it should do complete justice between the parties, by disposing of all questions between them in relation to the land and its use. In the language of Judge Story, “ the jurisdiction having once rightfully attached, it shall be made effectual for the purposes of complete relief.” (Story’s Eq. Jur. § 64, k.) Besides, this action is brought for a partition and account, and in such case the latter will be decreed. (Story’s Eq. Jur. § 655.)
In regard to the respective claims of William G. Guernsey and James G. Thompson, fqr improvements made by them on the premises, I think the judgment is right in denying those claims. The referpe reports, as to the
The referee allowed interest upon the moneys received ' for rents, from, the time of their receipt. In this I think he was right. The money belonged to all the co-tenants, in the proportion of their interest in the property, and when one received the whole he became the.debtor of each, for his proportion, and an action for money had and received could have been brought for it, without a previ- v ous demand. (1 R. S. 750, § 9.) There being default in the payment of a liquidated amount of money due, interest was properly charged. (Williams v. Sherman, 7 Wend. 109. Van Bensselaer v. Jewett, 2 Comst. 135.)
, The insurance paid by Guernsey on the buildings erected by him was correctly disallowed. The policy was to him and his mother, the tenant for life, for their benefit, and not for that of the other tenants in common of the remainder, and they could have derived no benefit from it. ( Wyman v. Prosser, 36 Barb. 368.)
The judgment correctly, I think, makes the amounts found due from the parties who have received the rents of the premises liens on their respective shares of the real estate for the excess received beyond their shares of such rents. (Hannan v. Osborn, 4 Paige, 336.)
The defendant William G. Guernsey objects to the judgment in that it directs a sale, and not a partition of the premises, although the sale is directed to be made in parcels. The seeming incongruity of these directions vanishes when w'e see that the parcels specified are by no means such as would constitute a division according to the respective interests of the parties; but are such as (in the
There is no error in the order bringing in D. Wilmot Scott, the administrator of his wife Mary 0. Scott, one of the plaintiffs, who died after the commencement of the suit. As such administrator he was entitled to that portion of the rents which accrued to Mary 0. Scott prior to her death; and as the action seeks an accounting, as well as a partition, complete relief could not be granted without making him a party.
Upon the whole, I do not see any error in the judgment, and am of the opinion that it should be affirmed, with costs
Parker, P. J., and Balcom, Mason and Boardman, Justices.]