Frick v. Schenck — 187 N.Y. 523

Majority

p. 523

Martin J. Frick et al., as Executors of Martin Frick, Deceased, et al., Respondents, v. Myra J. Schenck et al., Individually and as Executrices of Myra J. Schenck, Deceased, et al., Appellants.

Headnote

Frick v. Schenck, 105 App. Div. 628 , affirmed.

(Argued December 18, 1906;

decided January 8, 1907.)

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered May 23, 1905, which modified and affirmed as modified an interlocutory judgment of an Equity Term construing the will of John Frick, deceased.

The following questions were certified:

“ 1. Do the surrogate’s decrees of 1886, 1896 and 1898, or any of them, constitute a bar to the plaintiffs’ cause of action ?

“ 2. Are plaintiffs estopped from denying the widow’s claim to the fee by reason of their Own laches; by reason of the operation of the Statute of Limitations, lapse of time, of adverse possession, or on account of equitable estoppel ?

“ 3. Is the action properly before the court in not having been brought by or against the administrator with the will annexed of John Frick, deceased?

“ 4. Under the proof did the widow take title to the fee of

p. 524

the homestead farm by operation of law as tenant of the entirety irrespective of the will?

“ 5; If the will he a proper subject for construction at this time, did the widow take a life estate only; a life estate with power to take of the principal, and if so, to what part of the principal was she restricted under the will, or did she take the fee?”

Edward E. Tanner for appellants.

Adelbert Moot and Helen Z. M. Rogers for respondents.

Interlocutory judgment affirmed, with costs. First and second questions certified answered in the negative. Third question answered in the affirmative. Fifth question answered as follows: The widow took a life estate, with power of sale, and was entitled to use the principal thereof for her maintenance, the remainder at her death being given equally to testator’s three brothers. The fourth question, not having been passed,upon by the Appellate Division, is not answered; no opinion.

Concur: Cullen, Ch. J., Gray, O’Brien, Edward T. Bartlett, Werner and Chase, JJ. Hot sitting : Hiscock, J.