Bacon v. Sayre — 218 N.Y. 725

Majority

p. 725

Francis Bacon, Individually and as Executor of Emma Bacon, Deceased, Appellant, v. Wellington K. Sayre et al., as Executors of Weltha E. Sayre, Deceased, Respondents, and George E. Zartman, as Trustee in Bankruptcy of Francis Bacon, Appellant.

Headnote

Baeon v. Sayre, 164 App. Div. 909 , affirmed.

(Argued June 1, 1916;

decided June 16, 1916.)

Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered July 25, 1914, affirming a judgment in favor of defendants, respondents, entered upon a decision- of the court at a Trial Term without a jury in an action to obtain judicial construction of the will of Emma Bacon, deceased, which after providing that the remainder of her estate should be divided between her children, contained the following disputed clause: “Provided always

p. 726

that in case any of my said children shall die leaving issue surviving them such one’s share shall go to such issue, share and share alike. But in case any of my said children shall die without leaving issue surviving, then such deceased one’s share shall go to his or her surviving brothers and sisters, share and share alike, and in no event shall the shares of my said daughters, should they die without issue surviving, go to their husbands respectively, but shall go as above indicated to their surviving brothers and sisters as aforesaid indicated.” It is claimed by the plaintiff and by the defendant Zartman, as trustee, that the legacies in Emma Bacon’s will to her six children were not intended to be absolute gifts.

William S. MacDonald and Charles E. Opdyke for plaintiff, appellant.

George E. Zartman for defendant, appellant.

James S. Havens and J. Willard Huff for respondents;

Judgment affirmed, with costs; no opinion.

• Concur: Willard Bartlett, Ch. J., Hiscock, Chase, Collin, Hogan, Oardozo and Seabury, JJ.