Brown v. Brown — 81 N.Y.S. 918

Majority

p. 918

BROWN v. BROWN et al.

(Supreme Court, Appellate Division, Second Department.

January 23, 1903.)

Headnote

1. Wills—Construction—Partial Intestacy.

Where it was evident from testator’s will that his main purpose was to divide his estate between his four children, and it was provided that on a sale of the major portion of the property the proceeds should be divided into four parts, and that from one of them a certain sum should be deducted, and the remainder paid to one child, by the general purpose of the division, as expressed, and by implication of law, the three

p. 919

parts of which no express disposition was made should go to the three children whose parts were not diminished by the special provision applicable to one alone.

Appeal from Special Term, Kings County.

Action by Alfred S. Brown against Edward S. Brown and others and John A. Quintard and others. From the judgment, plaintiff and defendant Brown and some of the other defendants appeal.

Affirmed.

Testator’s will made various devises to his four children, and provided for certain payments to be made to them and to others monthly from the income from the greater portion of his estate until such time as the corpus of such portion of the estate should be sold. On such sale he directed that the proceeds should be divided into four parts, and he advised that the sale be made on the expiration of a certain lease for 26 years, or at such other time as his executors should deem advisable. He directed his executors to pay certain mortgages on his property, and provided that from one of the four parts before mentioned a certain sum should be deducted, and the balance paid to one of his sons.

■ The following is the opinion of Russell, J., delivered at Special Term:

“The major purpose of the testator was to divide his property among his four children equally, except as to a deduction of $3,000 from the share of one for the very purpose of equalization of benefit. To accomplish that main object, the .executors were given power to sell the real estate, power to sell personalty by provision of the will being unnecessary, and such power was unlimited by any superior controlling clause suspending the capacity to .alienate during the term of any life. The directions to provisionally dispose of the income and to pay mortgages are simply guides to the executors for their necessary action during the interim between death and sale. The absence of precise directions as to what shall be done with three of the four parts of the proceeds does not destroy or alter any right. By the general purpose of the division, as expressed, and by implication of law, those three parts go to the three children whose parts are not diminished by the special provision applicable to one alone.

“Present proposed decision and judgment, with memoranda of counsel as to costs.”

Argued before GOODRICH, P. J., and BARTLETT, JENKS, WOODWARD, HIRSCHBERG, and HOOKER, JJ.

Francis A. McCloskey, Jesse Silbermann, Louis J. Altkrug, and R. B. Kelly (Joseph Fettretch, of counsel), for appellants.

Hirsh & Rasquin, Max E. Lehman, and Albert C. Wheeler, for respondents.

Judgment affirmed, with costs, upon the opinion of RUSSELL, J., at Special Term.