Lawsuit Over the Will of John Hunter of Hunter's Island
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During the 19th century, when wealthy New Yorkers built some of the region's most beautiful mansions along the shore of the Long Island Sound in the Town of Pelham, the mansion of one wealthy New Yorker stood out among all others. It was the home of John Hunter on Hunter's Island in Long Island Sound.
John Hunter was born August 4, 1778 and died in his home on Hunter's Island on September 12, 1852. John Hunter executed his will on May 8 1852. He added a codicil to his will on September 8, 1852, four days before his death.
After Hunter's death, his son and executor. Elias Desbrosses Hunter, filed a lawsuit against family members seeking construction of the will. The lawsuit does not appear, on its face at least, to be indicative of a family dispute over disposition of the assets of John Hunter. Rather, it seems to have been an honest effort to obtain judicial guidance regarding vague elements of John Hunter's will.
Today's posting to the Historic Pelham Blog transcribes a very large portion -- though not all -- of the judicial decision construing the terms of John Hunter's will. I have transcribed the editor's case notes at the outset that summarize the judicial determinations of the will. I have transcribed the entirety of the will and the codicil added by Hunter shortly before his death. I also have transcribed a very small portion of the judicial decision to provide context regarding important issues such as the codicil to the will. For those who wish to read the entirety of the lengthy decision, it may be accessed via a link at the end of today's posting.
"ELIAS D. HUNTER vs. JOHN HUNTER, JUN., ELIZABETH D. HUNTER, ANN M. HUNTER, ADELE HUNTER AND ELIAS D. HUNTER, JUN.
Rents reserved upon perpetual leases are incorporeal hereditaments, and as such they are descendible from those to whom they are reserved.
The word 'seised,' in a conveyance, does not confine the description to tangible property. Seisn has reference to the estate, and not to the thing in which the estate exists.
Where a deed conveyed property to J. H. to be held by him in trust to and for the use of the grantee and his wife, during their natural lives, and for the use of the survivor during his or her life; and upon the death of the survivor the property was to be held in trust for the use of their son, E. D. H. if he should ten be a minor, until he should attain the age of twenty-one years; or if he should then be of full age, or when he should attaint that age, it was to vest in him absolutely; Held that the deed was to be construed as providing that the property should be held for the use of the parents, [Page 25 / Page 26] and the survivor, during life; and that upon the death of the survivor and the full age of the son it should vest in him absolutely.
Authority was also conferred, by the same deed, upon J. H., his heirs and assigns, or the guardians of such of his heirs as might be minors, to make sales or leases of all or any part of the estate included in the deed; but it was expressly provided that the considerations, rents, issues and profits of what might be sold should be subject to the trusts specified in that conveyance. Under this power J. H. sold a portion of the lands, and received a part of the consideration money. He also leased another portion of such lands, in perpetuity, and received a part of the rents accruing during his life. He also entered into contracts for the sale of another portion of these lands and received a part of the rents accruing during his life. H also entered into contracts for the sale of another portion of these lands and received a part of the consideration money, and made contracts for the extinguishment of the rents of a portion of the lands held under the perpetual leases, and received a part of the consideration money. Held, that in all those cases where the contracts were not consummated by conveyances, the property had not been divested, but after the death of J. H. was in his son E. D. H.; and the requisite conveyances should be executed by the latter.
Held also,, that J. H. was entitled, during his life, to the rents, issues and profits of the unsold lands, and to the interest accruing on the consideration moneys of such portions of the real estate as he had sold, or contracted to sell. And that upon his death, his son E. D.. H. became seised in fee of the unsold lands, and the rents on the then existing and unaffected leases, and entitled to the consideration moneys for that portion of the estate which had been sold; whether it had been paid to J. H. or remained unpaid at the time of his decease.
Held further, that the principal moneys which had been received by J. H. in his lifetime, on account of the lands, or which remained unpaid at the death of J. H. was the property of J. H. and passed under his will, as a portion of his personal estate.
Where such deed conveyed lands in trust for J. H. and his wife, during life and for their son, E. D. H., during his minority; and on the death of both parents, and the termination of such minority, E. D. H. was to stand seised of all the estate, to and for the sole use of himself, his heirs and assigns in fee, without any further trust of and concerning the same; HELD that this was clearly a legal estate, and was exempt from a power of revocation reserved to J. H. and his wife, in respect to 'the trusts' contained in such deed.
A deed, executed by J. H. and his wife to J. H. jun. was confided to the custody of P. and was not to be delivered to the proposed grantee until he should attain the age of 25 years. If he should die under that age, having married with the consent of his parents, and having lawful issue at the time of his death, the title to the premises was to vest in, and the deed was to be delivered immediately to, or for the benefit of, such issue. Held, 1. That [Page 26 / Page 27] the term having lawful issue, applied to the time when the grantee might die under the appointed age.
2. That, the revised statutes providing that as to any ulterior disposition of property by way of remainder, the failure in such cases is at the time of the death of the ancestor, the use of those terms did not create an estate tail, by implication, in J. H. jun. during his minority, to be forfeited, (in the event of his death under 25,) at the time when he would, if living, have attained that age.
3. That the ulterior estates were not made dependent upon a contingency too remote to take effect; the suspension of the power of alienation being limited to the single life of J. H. jun.
4. That the deed did not become inoperative and void, by the death of one of the grantors previous to the time specified for its delivery; but that the title might be perfected by a delivery of the deed by the depositary to the grantee, after he attained the age of 25.
When a deed is at first delivered to a third person as an escrow, such delivery is good and valid, and vests the title on the performance of the condition, or the happening of the specified contingency. Therefore if either of the parties dies before the condition is performed, and the condition is afterwards perfected, the deed avails, and takes effect by the first delivery.
Where it was expressly declared in an explanatory instrument accompanying a deed that those papers were to be placed in the hands of P. as an escrow, yet there were some provisions for intermediate action -- such as reservations or creations of power to manage, lease or sell the lands, to collect the rents, and moneys due on contracts of sale, and to invest the moneys which might be received for the benefit of the grantee, provided he should eventually be entitled to the property -- Held, that these provisions, to give them any effect, must be deemed declarations of trust, which it was competent for the grantors to make; and that as P. might be considered the trustee of the grantee, to receive and hold the deed provisionally, for him, they became and continued effective.
A grantee of land, while the deed to him is held as an escrow, has no expectant estate which gives him a right to the intermediate rents and profits, under the 40th section of the title of the revised statutes relative to the creation and division of estates.
There can be no valid existing limitation of an estate, under an escrow, until it has become effectual by the eventual delivery.
Where a testator devised to his granddaughters all his lands 'in great lot No. 25 in the Hardenburgh patent lying in the county of Greene, and all my other lands in the said county of Greene, from and after the death of my said son,' and neither the patent nor the lot lay wholly in that county; Held, 1. That this included only that part of lot No. 25 situated in the county of Greene, which belonged to the testator; the words 'lying in the county of Green' not being designed as descriptive of the last preceding [Page 27 / Page 28] antecedent -- the H. patent -- nor of the lot, but as referring to the lands intended to be devised.
2. That the words 'from and after the death of my said son,' which followed both devises, were applicable to each.
A devise in general terms, of all the testator's lands in a particular county, passes his right to rents under perpetual leases on lands lying in such county.
Where a testator gave a legacy of $20,000 to each of his three granddaughters, with a positive direction that such legacies should be paid out of the personal estate; and in a previous specific bequest of certain funds in the hands of P. to his grandson, it was declared that they were subject to the payment of the legacies to the granddaughters; it was held that this clause neither directed nor implied that those legacies should be paid out of such funds primarily, but that a resort might be had to them, if it should become necessary; in other words, that if either should fail, it should be the specific legacy.
Held also, that those funds might be applied towards the payment of the legacies to the granddaughters, in aid of that portion of the estate liable therefor, according to the usual rule, but not otherwise.
A testator devised a farm to his son, for life, and directed that after the son's death the farm should be divided into three parts, and he gave one share to each of his three granddaughters in fee; and in case any of his granddaughters should die before the termination of the life estate of his son, leaving lawful issue or lineal descendants her surviving, then he gave and devised to such lawful issue, &c. the same share which the mother would have taken if she had lived. And in case any of his said granddaughters should die without leaving lawful issue, &c. then the share of the one so dying was to be divided equally between her surviving sisters, and the issue of such of them as might then be dead. Held, that the devise over to the issue must necessarily take effect, if at all, immediately upon the termination of the life estate of the testator's son; and that, although the devise to the survivor or survivors, or the issue of any who might have previously died, was not confined in terms to a death within the lifetime of the son, yet that as both clauses related to the same property, and provided for consistent alternatives, the testator contemplated in each the same period; that neither, therefor, suspended the power of alienation beyond the life of one person.
A testator devised to his grandson, J. H. jun. the Bayard farm, on condition that he should not sell or dispose of the same until he should have attained the age of twenty-five years; and he directed that upon the decease of his son E. D. H., and within forty days thereafter, J. H. jun. should have his election either to remain in the occupation of the Bayard farm, or to remove to Hunter's Island that he should leave to his mother and sisters the Bayard farm, &c. for their residence, free of rent, as long as they should remain single, and desire [Page 28 / Page 29] to occupy the same. And in the event of J. H. jun. electing to remove to Hunter's Island, &c. the testator devised to him Hunter's Island, Hart Island and the Provoost farm, from and after the death of E. D. H. But in case J. H. jun. should survive E. D. H. and omit to make his election, or shoudl die before E. D. H., leaving lawful issue, then he ordered the islands and farm to be sold and the proceeds divided; and in case J. H. jun. should die before E. D. H., leaving no issue him surviving, then upon the death of E. D. H. the islands and farm were given to the testator's three granddaughters. By a codicil the testator directed that upon making the election mentioned in the will, J. H. jun. should execute a deed for the Bayard farm to his three sisters, subject to the use and occupation thereof by his mother and sisters, so long as they should remain unmarried. Held, 1. That there was nothing in the devise of the Bayard and Provoost farms, or of the islands, which could suspend the absolute power of alienation, as to either, for more than two lives in being at the death of the testator.
2. That neither the requisition in the will that J. H. jun., on making the election, should leave the Bayard farm to his mother and sisters, so long as they should remain single, nor the direction in the codicil that, on making such election, he should execute a deed of said farm to his sisters, subject to the use and occupation thereof by them and their mother, and the survivors, so long as they should remain unmarried, would effect a suspension of the power of alienation at all, within the meaning of the statute.
3. That J. H. jun. took a present fee in the Bayard farm, with a restriction as to selling it until he should attain the age of 25 years, determinable on his electing, at the death of E. D. H. to remove to Hunter's Island, or -- on his refusal or omission to do that -- at his death, if he should leave no lawful issue then living.
4. That he could sell the farm, on his attaining the requisite age, and give a title for it, defeasible only upon his dying without lawful issue.
5. That he, upon the death of E. D. H., on his electing to remove to Hunter's Island and executing a deed to his sisters, for the Bayard farm, would take a fee, subject to the privilege to them and their mother mentioned in the codicil, in the two islands and the Provoost farm, determinable in favor of the granddaughters, on his dying withoout leaving lawful issue.
6. That upon J. H. jun. acquiring the fee he could dispose of the property, and confer a title therefor, subject to be defeated only upon the specified contingency.
A devise of lands to E. D. H. for life, then to J. H. jun. in fee, and upon his dying without leaving lawful issue at the tiime of his death, over to his three sisters, in fee, is not too remote; the power of alienation not being suspended by the lives of the children of J. H. jun.
The statute has reference to the lives the continuance of which actually suspend the power.
A suspension of the power of alienation, resulting simply from minority, is not such as is contemplated by the statute. [Page 29 / Page 30]
A charge upon the income of the testator's estate, for the education of his grandchildren, is not void as illegally suspending the power of alienation of the real estate, and the absolute ownership of the personal property.
[EDITOR'S NOTE: The Case Reporter's case notes end at this point and the actual opinion of the Court begins immediately below.]
The complaint in this cause was filed by Elias Desbrosses Hunter, individually, and as executor of the last will and testament of John Hunter, late of Hunter's Island in the county of Westchester, deceased, against the defendants John Hunter, jun., Elizabeth D. Hunter, Ann M. Hunter, Adele Hunter and Elias D. Hunter, jun. for a construction of the will of the testator, and of sundry deeds upon which his title depended. The complaint alleged that the testator died on the 12th of September 1852, having in his lifetime and on or about the 8th of May, 1852, duly made and published his last will and testament, in due form of law to pass real estate, by which he devised and directed as follows:
"First. I direct my just debts and funeral expenses to be paid out of my personal estate. Second. I give, devise and bequeath unto my son Elias Desbrosses Hunter, his heirs and assigns forever, all my land in great lot forty-one (41) of the Hardenburgh patent in Delaware county: my lot number eleven (11) in the town of Mamakating in Sullivan county: my house and lot of groudn in Batavia-street or lane in the city of New-York: my two houses and lots of ground in Cherry-street in said city: my two houses and lots of ground in Water-street in said city: and my store and lot of ground in Front-street in said city: which property formerly belonged to my wife and has been in the possession of my said son for many years. And I also give, devise and bequeath unto my said son, for and during his natural life, the use, possession, income and profits of the residue of my estate, real and personal, not hereinafter other wise expressly disposed of. Third. Having given unto my grandson John Hunter, my land in great lots numbers four (4) and five (5) of the Hardenburgh patent, lying in the county of Sullivan, by deed of fee simple, I do hereby ratify and confirm forever my said gift and deed to him: and I give and devise unto my said grandson, his heirs and assigns forever, all my other lands in that vounty, except the premises above devised to [Page 30 / Page 31] my said son. And I also give and devise unto my said grandson, John Hunter and his heirs, my farm on Throgs Neck, in Westchester county, known as the Bayard farm, with the buildings and appurtenances thereof, upon condition however that he shall not sell or dispose of this farm, until he shall have obtained the age of twenty-five years. Fourth. Upon the decease of my said son, and within forty days thereafter, it is my desire that my said grandson John Hunter, shall have his election either to remain in the occupation of the Bayard farm, or to remove to Hunter's Island, where I now reside: and in case he should elect to remove to Hunter's Island, that he will lease to his mother and his three sisters, Elizabeth, Ann and Adele, the Bayard farm with its cottage, for their residence, free of rent as long as they shall remain single, and desire to occupy the same. In the event of my said grandson electing to remove to Hunter's Island, and providing a residence for his mother and sisters as aforesaid, in accordance with my wishes, then I give and devise until my said grandson, John Hunter, his heirs and assigns forever, Hunter's Island aforesaid, Hart Island and the Provoost farm, all in the said town of Pelham, with the buildings and appurtenances thereto belonging, from and after the death of my said son: and also a right of way with cattle and teams over the lane now used by me across my farm commonly called and known as the Sackett farm, situated in the said town of Pelham, opposite Hunter's Island and getween the farms of Mr. Thatcher and Elbert Roosevelt, and also a right of way from the said lane, through the woods of said Sackett farm, to and from the said Provoost farm. But in case my said grandson should survive his said father and omit to make his election as aforesaid, then I order and direct my executors hereinafter named, and the survivor of them at their or his discretion, to sell and dispose of in fee simple, the said Hunter's Island, Hart Island and Provoost farm, with the right of way across and through the Sackett farm as aforesaid, at public or private sale for cash, or on credit, as may be deemed best; and upon making such sale, or sales, and receiving the purchase money or security for the same, I authorize and empower my said executors and the survivor of [Page 31 / Page 32] them to execute and deliver to the purchaser or purchasers thereof good and valid deeds of conveyance for the same, in due form of law. And the net proceeds of such sales I direct to be divided into two equal parts, which I dispose of as follows: One equal part thereof I give and bequeath unto my said grandson John Hunter, absolutely forever; and the other equal part I give and bequeath unto his said three sisters, Elizabeth, Ann and Adele, and their legal representatives, share and share alike, forever. But should my said grandson die before his said father, leaving lawful issue, then on the death of my said son, I direct may said executors to sell the said Hunter's Island, Hart Island and Provoost farm, with the right of way as aforesaid; and the proceeds thereof I give and bequeath as follows: One-fourth part thereof to the issue of my said grandson, and one-fourth part thereof to each of my said grand daughters or their legal representatives absolutely, forever. And in case my said grandson should die before his said father, leaving no issue him surviving, then upon the death of my said son I give and devise the said Hunter's Island, Hart Island and Provoost farm, with the said right of way, to my said three granddaughters, Elizabeth, Ann and Adele, equally in fee. Fifth. I give and devise unto my said granddaughters Elizabeth D. Hunter, Ann M. Hunter and Adele Hunter, all my lands in great lot number twenty-five (25) in the Hardenburgh patent lying in the county of Greene, and all my other lands in the said county of Greene, from and after the death of my said son, share and share alike forever. And also my said Sackett farm from and after the death of my said son, to be divided into three parts as follows: the first part being all that portion of said farm lying between the creek on the southerly side, the farm of Mr. Thatcher on the westerly side, my Provoost farm on the northerly side, and a straight line to be run from the said creek up to and through the center of the lane leading through said Sackett farm to the said Provoost farm, containing by estimation fifty acres of land, I give and devise to my said granddaughter Ann M. Hunter, her heirs and assigns forever, from and after the death of my said son, subject to the right of way as aforesaid. All that portion [Page 32 / Page 33] of said Sacket farm, containing by estimation fifty acres, and lying between the easterly line of the piece hereby devised to my said granddaughter Ann, and a straight line to be run northerly and southerly through the said Sackett farm, from the said creek to the Provoost farm, so as to divide the residue of said Sackett farm into two equal parts, I give and devise to my said granddaughter Elizabeth D. Hunter, her heirs and assigns forever, from and after the death of my said son, subject to the right of way as aforesaid. And all that portion of my said Sackett farm lying between the easterly line of the piece hereby devised to my said granddaughter Elizabeth, and the farm or land of Elbert Roosevelt, containing by estimation fifty acres, I give and devise to my said granddaughter Adele Hunter, her heirs and assigns forever, from and after the death of my said son. In case any of my granddaughters should die before the termination of the life estate of my said son, leaving lawful issue or lineal descendants her surviving, then I give and devise to such lawful issue or lineal descendants, the same share which the mother would have taken if she had lived. And in case any of my said granddaughters should die without leaving lawful issue or lineal descendants, then the share of the one so dying shall be divided equally between her surviving sisters and the issue of such of them as may then be dead. Sixth. I give and devise to my said granddaughter Elizabeth D. Hunter, in fee from and after the death of my said son, my house and lot number seventy-two (72) Walker-street, in the city of New-York, purchased from the estate of the late Peter Jay Munro. In case the said Elizabeth should die before the termination of the life estate of my said son, leaving lawsul issue or lineal descendants her surviving, then I give and devise the said house and lot to such lawful issue or lineal descendants. But should the said Elizabeth die before the termination of such life estate, leaving no issue or lineal descendants her surviving, then I give and devise the said house and lot, after the death of my said son, unto my granddaughters Ann and Adele, or such of them as shall be living at the death of my said son, and the issue of them as may then be dead. Seventh. I give and devise to my said grand- [Page 33 / Page 34] daughter, Ann M. Hunter, in fee, from and after the death of my said son, my house and lot number seventy-four (74) Walker-street in the city of New-York, purchased from the estate of the late Peter Jay Munro. In case the said Ann should die before the termination of the life estate of my said son, leaving lawful issue or lineal descendants her surviving, then I give and devise the said house and lot to such lawful issue, or lineal descendants. But should the said Ann die before the termination of such life estate, leaving no issue or lineal descendants her surviving, then I give and devise the said house and lot, after the death of my said son, unto my granddaughters Elizabeth and Adele, or such of them as shall be living at the death of my said son, and the issue of such of them as may then be dead. Eighth. I give and devise unto my said granddaughter Adele Hunter, in fee from and after the death of my said son, two of my houses and lots in Elm-street, in the city of New-York, described in a conveyance to me therefor, as numbers eighty-five (85) and ninety-one (91). In case the said Adele should die before the termination of the life estate of my said son, leaving lawful issue or lineal descendants her surviving, then I give and devise the said houses and lots to such lawful issue or lineal descendants. But should the said Adele die before the termination of such life estate, leaving no issue or lineal descendants her surviving, then I give and devise the said houses and lots, after the death of my said son, unto my granddaughters Elizabeth and Ann, or such of them as shall be living at the death of my son, and the issue of such of them as may then be dead. Ninth. I give and bequeath unto my said grandson John Hunter, all my stock in the Westchester County Bank, all my stock in the Tanners' Bank at Catskill, and all such bonds and mortgages and other securities and moneys which may be in the hands of my friend James Powers, Esquire, at the time of my decease: subject, however, to the payment of the legacies hereinafter given to his sisters, and subject also to such costs and charges as may exist against the same. And I do also hereby ratify and confirm the gift heretofore made by me to my said grandson, of a certain bond and mortgage upon lands in Newtown, Queens [Page 34 / Page 35] county, executed by my brother Robert R. Hunter, unto me. To have and to hodl the said bond and mortgage with the moneys due and to grow due thereon, unto my said grandson for his own use absolutely forever. Tenth. I give and devise all the lands I own throughout the state purchased at tax sales, or obtained from my brother Robert R. Hunter, or from the assignees of John Kiersted, except my lands in the county of Sullivan, unto my said granddaughters, Elizabeth, Ann and Adele, share and share alike, forever; which lands I hereby authorize and empower my executros, or whoever shall execute this will, to sell at public or private sale, in their or his discretion, and to execute good and valid deeds of conveyances for the same: and to invest the proceedss of such sales on bond and mortgage, on unincumbered real estate of double the value of the sum so invested, for the benefit of my said granddaughters. Eleventh. I give and bequeath unto my said granddaughters, Elizabeth, Ann and Adele, each the sum of twenty thousand dollars, and I direct the same to pbe paid to them immediately after my decease out of my personal estate. Twelfth. I give and bequeath unto my said grandson John Hunter, from and after the decease of my said son, all my plate, books, and pictures, household furniture, horses, carriages, harness, farming utensils, and stock, on my farms. Thirteenth. I give and devise unto Mary Mills, now residing with me, the use and enjoyment of the island, formerly called Hog Island, purchased by me from Captain Sheffield, and of the land purchased by me from Elbert Roosevelt, contiguous thereto, up to the post road, as long as she shall remain unmarried, and upon her death or marriage, I give and devise the same unto my grandson, John Hunter, forever. Fourteenth. I give and bequeath unto the said Mary Mills, an annuity of three hundred dollars a year, as long as she shall remain unmarried; and I direct the same to be paid to her in half-yearly payments of $150 each, out of the income of my personal estate, any thing hereinbefore contained to the contrary notwithstanding. Fifteenth. It is my will that all my grandchildren be liberally educated. I do therefore direct my executors, or whoever shall execute this will, to have them educated in the best manner out of the income [Page 35 / Page 36] of my estate; and I do hereby charge the expenses thereof upon such income, any thing herein before contained, to the contrary notwithstanding. Sixteenth. I do hereby authorize and empower my executors or whoever shall execute this will, to sell and dispose of my bank and other stocks, as he or they may think proper, and in case of a sale of any part thereof, I direct the proceeds of the stock so sold, to be immediately invested upon bond and mortgage, on unincumbered real estate, of double the value of the sum invested, for the benefit of the legatees thereof, under this my will. Seventeenth. All the rest, residue and remainder of my real estate, not hereinbefore otherwise disposed of, I give and devise to my said grandson, John Hunter, subject to the life estate of his father, in fee simple forever. And in case he should die before the termination of this father's life estate, leaving lawful issue, or lineal descendants him surviving, then I give and devise the said residue of my real estate, from and after the death of my son, unto such lawful issue or lineal descendants. But should my said grandson die before the termination of said life estate, leaving no lawful issue or lineal descendants him surviving, then I give and devise the said residue of my real estate unto my said three granddaughters and the issue of such of them as may ten be deae, in representation of its deceased parent, share and share alike, forever. Eighteenth. All the rest, residue and remainder of my personal estate not hereinbefore otherwise disposed of, I give and bequeath unto my said grandson and granddaughters or their legal representatives from and after the death of my said son, equally share and share alike, forever. Nineteenth. I hereby nominate, constitute and appoint my son Elias Desbrosses Hunter, and my said grandson John Hunter, the executors of this my will; and in case the said John Hunter should die before his father, then I appoint my said granddaughter Elizabeth D. Hunter as a executrix of this my will, in his place. Twentieth. I direct and request my said son to pay all taxes and assessments, which may from time to time be imposed upon the real and personal estate, the use of which I have given to him during his natural lief. And inasmuch as my son is the natural guardian of his children, it is my will and [Page 36 / Page 37] desire that he, as my executor, should continue and be during their respective minorities the trustee of the estates and interests which I have given unto my said grandson and granddaughters. Twenty-First. Whereas many contracts for the sale of portionss of my real estate may be made by me in my lifetime, and remain unperformed at my decease, I do therefore authorize and empower my executors or whoever shall execute my will, to carry such contracts into effect, and perform the conditions thereof as fully as I could do if living; and to execute and deliver to the persons with whom such contracts have been made by me, good and sufficient deeds for such lands and premises. And the proceeds of such contracts and sales shall be invested by my executors or whoever shall execute my will, on bond and mortgage for the benefit of the devisees thereof, under this my will, in the same manner as other investments are hereinbefore directed to be made. Twenty-second. I do hereby authorize and empower my executors, or whoever shall execute this will, to lease or sell such wild lands, as he or they may in their or his discretion think proper, and to execute good and sufficient deeds therefore, and to invest the proceeds of such sales on bond and mortgage, for the benefit of the devisees thereof, under this my will, in the same manner and with the like securities as other investments are hereinbefore directed to be made.'
The complaint then alleged the making of a codicil to this will by the testator, on the 8th of September, 1852, as follows:
'Whereas I have in my saide last will and testament, given to my grandson, John Hunter, his election in a certain contingency, either to remain in the occupation of the Bayard farm or to remove to Hunter's Island, where I now reside. Now, therefore, in case my said grandson, John Hunter, shall make his electionn on the happening of the contingency aforesaid, to remove to Hunter's Island, then I order and direct my said grandson, John Hunter, to execute to his sisters, Elizabeth D. Hunter, Ann M. Hunter, and Adele Hunter, a conveyance in fee simple of the said Bayard farm, with its appurtenances, subject to the use and occupation thereof by his mother and his said sisters so long as they respectively remain single and unmarried; and if any of [Page 37 / Page 38] them are then dead or married, then subject to the use and occupation thereof by the survivors or residue of them so long as they respectively remain single and unmarried -- the survivor or survivors to remain in and have the use and occupation thereof so long as they respectively remain single and unmarried. And whereas I have in my said last will and testament, devised large real estate to my said grandson, John Hunter, now therefore, in case the said John Hunter, (my grandson) shall die without leaving any lawful children or descendants at the time of his death, I give, devise and bequeath all and every part and portion of said real estates to my said granddaughters, Elizabeth D. Hunter, Ann M. Hunter, and Adele Hunter, their heirs and assigns forever. And whereas I have in the twenty-first clause or section of my said last will and testament, conferred certain powers and imposed certain duties upon my executors, or the person or persons executing my will, in regard to certain contracts for the sale of portions of my real estate, and the proceeds and investment of the avails thereof: -- Now therefore, I desire to make the subjects of that clause or section, and the powers and duties of the persons executing my will in relation thereto, more clear and comprehensive; and I desire to embrace, and do hereby include within the operation of that clause or section, all contracts for the sale of portions of my real estate, whether made before or after the date and execution of said will, or before or after (at any time during my life) the date and execution of this codicil thereto, and I desire to confer and impose and do hereby confer and impose, the same powers and duties in relation thereto upon the survivor or survivors of my executors that I have therein conferred or imposed upon my executors, or whoever shall execute my will. And whereas some or all of said contracts do or may embrace covenants or conditions in regard to said lands, on my part to be fulfilled, performed and kept, now therefore, I desire and direct my said executors or the survivor or survivors of them, or whoever may execute my said will and this codicil, to fulfill, perform and keep such covenants and conditions, so far as it may be lawful for them to do so in their said character of executors or persons executing my will [Page 38 / Page 39] and so far as it may be lawful and proper for them as such executors or persons executing my will to do so, to insert in the instruments and conveyances to be executed by them the necessary covenants and conditions to carry out and effectuate the said contracts, and the covenants, conditions and provisions thereof, and so far as it may be lawful and proper for them to do so in the character aforesaid, and without incurring personal liability in that behalf, to bind my estate and assets to the performance and execution of such covenants and conditions -- intending hereby to confer upon them full power and authority to execute and carry out said contracts in the same manner, and to the same extent, as I might, could or ought to do if living. And whereas I have heretofore paid, or agreed to pay, and am or hereafter may be liable to pay, certain costs, counsel fees and expenses in establishing or defending the line between the Hardenburgh patent and the Rochester pagent, and also in establishing or defending my title to great lots Nos. 4 and 5 in the Hardenburgh patent, in and by my said will devised to my said grandson, John Hunter, now therefore, it is my will and intention, and I do hereby order and direct that my said grandson, John Hunter, shall be liable for and pay all of said costs, counsel fees and expenses for which I am or hereafter may be so liable for as aforesaid, and also all such as I have heretofore paid or may hereafter pay, or become obligated to pay in my lifetime.'
The complaint then alleged that on the 25th day of September, 1852, the said will and codicil were duly admitted to probate, and proved and recorded as a will, both of real and personal property, before the surrogate of the co0unty of Westcheaster, where the said John Hunter resided, at the time of his death, and at the same time letters testamentary thereon were granted to the plaintiff alone, the other executor named therein, to wit, John Hunter, jun. then and still being under the age of twenty-one years. And the plaintiff further stated that the said John Hunter, deceased, at the time of his death, died without leaving any widwo, and without leaving any next of kin or heirs at law him surviving, except the plaintiff, Elias D. Hunter, who is the son of the said John Hunter, deceased. And the plaintiff fur- [Page 39 / Page 40] ther stated that various questions had arisen as to the valideity and as to the true intent, meaning and construction of various devises, bequests and provisions contained in the said will and codicil, and as to the legal effect thereof, and as to the disposition and appropriation of the property of the said John Hunter in pursuance thereof, and as to the nature and extent of the interest and estate of the said John Hunter, in the property and moneys therein devised, bequeathed and disposed of, and as to the personal estate and assets, which under the provisions of said will, should bo upon the inventory of, and be accounted and estimated as part of the personal estate and assets of the said John Hunter, deceased, and that the plaintiff, both in his individua and representative capacity as executor of the last will and testament of the said John Hunter, deceased, was embarrassed in the execution of his duty and apprehensive that he might make mistakes and incur hazard and responsibility in the disposition of the property under said will and codicil, and the plaintiff believed and charged that it was important and necessary that said questions should be judicially determined, and said provisions, devises and bequests receive a judicial construction, and that all parties interested, so far as the plaintiff has been enabled to ascertain, were willing and desirous to have the same construed and determined by the judgment of this court without delay, and that the interest of all parties required that the same should be done. And the plaintiff further stated that the said John Hunter, at the time of his death, was seised and possessed in his own right, and in that of his wife, of large real and personal estates, the same or a part thereof lying and being in several counties in this state, and among others in the counties of Westchester, Albany, Broome, Cattaraugus, Chautauque, Chemung, Chenango, Clinton, Cortland, Delaware, Essex, Franklin, Fulton, Greene, Hamilton, Herkimer, Jefferson, Lewis, Madison, Monroe, Niagara, Oneida, Onondaga, Orange, Ontario, Otsego, Oswego, Rensselaer, Richmond, Rockland, Scholarie, Saratoga, Seneca, Steuben, Sullivan, Tioga, Ulster, Warren, Washington, Wayne, and Yates in the state of New-York. . . .
Source: Elias D. Hunter vs. John Hunter, Jun., Elizabeth D. Hunter, Ann M. Hunter, Adele Hunter and Elias D. Hunter, Jun., in Reports of Cases in Law and Equity in the Supreme Court of the State of New York, Vol. XVII, pp. 25-40 (Dutchess Co. Sup. Ct., July, 1853) (NY, NY: Banks & Brothers, Law Publishers, 1859).
Held also,, that J. H. was entitled, during his life, to the rents, issues and profits of the unsold lands, and to the interest accruing on the consideration moneys of such portions of the real estate as he had sold, or contracted to sell. And that upon his death, his son E. D.. H. became seised in fee of the unsold lands, and the rents on the then existing and unaffected leases, and entitled to the consideration moneys for that portion of the estate which had been sold; whether it had been paid to J. H. or remained unpaid at the time of his decease.
Held further, that the principal moneys which had been received by J. H. in his lifetime, on account of the lands, or which remained unpaid at the death of J. H. was the property of J. H. and passed under his will, as a portion of his personal estate.
Where such deed conveyed lands in trust for J. H. and his wife, during life and for their son, E. D. H., during his minority; and on the death of both parents, and the termination of such minority, E. D. H. was to stand seised of all the estate, to and for the sole use of himself, his heirs and assigns in fee, without any further trust of and concerning the same; HELD that this was clearly a legal estate, and was exempt from a power of revocation reserved to J. H. and his wife, in respect to 'the trusts' contained in such deed.
A deed, executed by J. H. and his wife to J. H. jun. was confided to the custody of P. and was not to be delivered to the proposed grantee until he should attain the age of 25 years. If he should die under that age, having married with the consent of his parents, and having lawful issue at the time of his death, the title to the premises was to vest in, and the deed was to be delivered immediately to, or for the benefit of, such issue. Held, 1. That [Page 26 / Page 27] the term having lawful issue, applied to the time when the grantee might die under the appointed age.
2. That, the revised statutes providing that as to any ulterior disposition of property by way of remainder, the failure in such cases is at the time of the death of the ancestor, the use of those terms did not create an estate tail, by implication, in J. H. jun. during his minority, to be forfeited, (in the event of his death under 25,) at the time when he would, if living, have attained that age.
3. That the ulterior estates were not made dependent upon a contingency too remote to take effect; the suspension of the power of alienation being limited to the single life of J. H. jun.
4. That the deed did not become inoperative and void, by the death of one of the grantors previous to the time specified for its delivery; but that the title might be perfected by a delivery of the deed by the depositary to the grantee, after he attained the age of 25.
When a deed is at first delivered to a third person as an escrow, such delivery is good and valid, and vests the title on the performance of the condition, or the happening of the specified contingency. Therefore if either of the parties dies before the condition is performed, and the condition is afterwards perfected, the deed avails, and takes effect by the first delivery.
Where it was expressly declared in an explanatory instrument accompanying a deed that those papers were to be placed in the hands of P. as an escrow, yet there were some provisions for intermediate action -- such as reservations or creations of power to manage, lease or sell the lands, to collect the rents, and moneys due on contracts of sale, and to invest the moneys which might be received for the benefit of the grantee, provided he should eventually be entitled to the property -- Held, that these provisions, to give them any effect, must be deemed declarations of trust, which it was competent for the grantors to make; and that as P. might be considered the trustee of the grantee, to receive and hold the deed provisionally, for him, they became and continued effective.
A grantee of land, while the deed to him is held as an escrow, has no expectant estate which gives him a right to the intermediate rents and profits, under the 40th section of the title of the revised statutes relative to the creation and division of estates.
There can be no valid existing limitation of an estate, under an escrow, until it has become effectual by the eventual delivery.
Where a testator devised to his granddaughters all his lands 'in great lot No. 25 in the Hardenburgh patent lying in the county of Greene, and all my other lands in the said county of Greene, from and after the death of my said son,' and neither the patent nor the lot lay wholly in that county; Held, 1. That this included only that part of lot No. 25 situated in the county of Greene, which belonged to the testator; the words 'lying in the county of Green' not being designed as descriptive of the last preceding [Page 27 / Page 28] antecedent -- the H. patent -- nor of the lot, but as referring to the lands intended to be devised.
2. That the words 'from and after the death of my said son,' which followed both devises, were applicable to each.
A devise in general terms, of all the testator's lands in a particular county, passes his right to rents under perpetual leases on lands lying in such county.
Where a testator gave a legacy of $20,000 to each of his three granddaughters, with a positive direction that such legacies should be paid out of the personal estate; and in a previous specific bequest of certain funds in the hands of P. to his grandson, it was declared that they were subject to the payment of the legacies to the granddaughters; it was held that this clause neither directed nor implied that those legacies should be paid out of such funds primarily, but that a resort might be had to them, if it should become necessary; in other words, that if either should fail, it should be the specific legacy.
Held also, that those funds might be applied towards the payment of the legacies to the granddaughters, in aid of that portion of the estate liable therefor, according to the usual rule, but not otherwise.
A testator devised a farm to his son, for life, and directed that after the son's death the farm should be divided into three parts, and he gave one share to each of his three granddaughters in fee; and in case any of his granddaughters should die before the termination of the life estate of his son, leaving lawful issue or lineal descendants her surviving, then he gave and devised to such lawful issue, &c. the same share which the mother would have taken if she had lived. And in case any of his said granddaughters should die without leaving lawful issue, &c. then the share of the one so dying was to be divided equally between her surviving sisters, and the issue of such of them as might then be dead. Held, that the devise over to the issue must necessarily take effect, if at all, immediately upon the termination of the life estate of the testator's son; and that, although the devise to the survivor or survivors, or the issue of any who might have previously died, was not confined in terms to a death within the lifetime of the son, yet that as both clauses related to the same property, and provided for consistent alternatives, the testator contemplated in each the same period; that neither, therefor, suspended the power of alienation beyond the life of one person.
A testator devised to his grandson, J. H. jun. the Bayard farm, on condition that he should not sell or dispose of the same until he should have attained the age of twenty-five years; and he directed that upon the decease of his son E. D. H., and within forty days thereafter, J. H. jun. should have his election either to remain in the occupation of the Bayard farm, or to remove to Hunter's Island that he should leave to his mother and sisters the Bayard farm, &c. for their residence, free of rent, as long as they should remain single, and desire [Page 28 / Page 29] to occupy the same. And in the event of J. H. jun. electing to remove to Hunter's Island, &c. the testator devised to him Hunter's Island, Hart Island and the Provoost farm, from and after the death of E. D. H. But in case J. H. jun. should survive E. D. H. and omit to make his election, or shoudl die before E. D. H., leaving lawful issue, then he ordered the islands and farm to be sold and the proceeds divided; and in case J. H. jun. should die before E. D. H., leaving no issue him surviving, then upon the death of E. D. H. the islands and farm were given to the testator's three granddaughters. By a codicil the testator directed that upon making the election mentioned in the will, J. H. jun. should execute a deed for the Bayard farm to his three sisters, subject to the use and occupation thereof by his mother and sisters, so long as they should remain unmarried. Held, 1. That there was nothing in the devise of the Bayard and Provoost farms, or of the islands, which could suspend the absolute power of alienation, as to either, for more than two lives in being at the death of the testator.
2. That neither the requisition in the will that J. H. jun., on making the election, should leave the Bayard farm to his mother and sisters, so long as they should remain single, nor the direction in the codicil that, on making such election, he should execute a deed of said farm to his sisters, subject to the use and occupation thereof by them and their mother, and the survivors, so long as they should remain unmarried, would effect a suspension of the power of alienation at all, within the meaning of the statute.
3. That J. H. jun. took a present fee in the Bayard farm, with a restriction as to selling it until he should attain the age of 25 years, determinable on his electing, at the death of E. D. H. to remove to Hunter's Island, or -- on his refusal or omission to do that -- at his death, if he should leave no lawful issue then living.
4. That he could sell the farm, on his attaining the requisite age, and give a title for it, defeasible only upon his dying without lawful issue.
5. That he, upon the death of E. D. H., on his electing to remove to Hunter's Island and executing a deed to his sisters, for the Bayard farm, would take a fee, subject to the privilege to them and their mother mentioned in the codicil, in the two islands and the Provoost farm, determinable in favor of the granddaughters, on his dying withoout leaving lawful issue.
6. That upon J. H. jun. acquiring the fee he could dispose of the property, and confer a title therefor, subject to be defeated only upon the specified contingency.
A devise of lands to E. D. H. for life, then to J. H. jun. in fee, and upon his dying without leaving lawful issue at the tiime of his death, over to his three sisters, in fee, is not too remote; the power of alienation not being suspended by the lives of the children of J. H. jun.
The statute has reference to the lives the continuance of which actually suspend the power.
A suspension of the power of alienation, resulting simply from minority, is not such as is contemplated by the statute. [Page 29 / Page 30]
A charge upon the income of the testator's estate, for the education of his grandchildren, is not void as illegally suspending the power of alienation of the real estate, and the absolute ownership of the personal property.
[EDITOR'S NOTE: The Case Reporter's case notes end at this point and the actual opinion of the Court begins immediately below.]
The complaint in this cause was filed by Elias Desbrosses Hunter, individually, and as executor of the last will and testament of John Hunter, late of Hunter's Island in the county of Westchester, deceased, against the defendants John Hunter, jun., Elizabeth D. Hunter, Ann M. Hunter, Adele Hunter and Elias D. Hunter, jun. for a construction of the will of the testator, and of sundry deeds upon which his title depended. The complaint alleged that the testator died on the 12th of September 1852, having in his lifetime and on or about the 8th of May, 1852, duly made and published his last will and testament, in due form of law to pass real estate, by which he devised and directed as follows:
"First. I direct my just debts and funeral expenses to be paid out of my personal estate. Second. I give, devise and bequeath unto my son Elias Desbrosses Hunter, his heirs and assigns forever, all my land in great lot forty-one (41) of the Hardenburgh patent in Delaware county: my lot number eleven (11) in the town of Mamakating in Sullivan county: my house and lot of groudn in Batavia-street or lane in the city of New-York: my two houses and lots of ground in Cherry-street in said city: my two houses and lots of ground in Water-street in said city: and my store and lot of ground in Front-street in said city: which property formerly belonged to my wife and has been in the possession of my said son for many years. And I also give, devise and bequeath unto my said son, for and during his natural life, the use, possession, income and profits of the residue of my estate, real and personal, not hereinafter other wise expressly disposed of. Third. Having given unto my grandson John Hunter, my land in great lots numbers four (4) and five (5) of the Hardenburgh patent, lying in the county of Sullivan, by deed of fee simple, I do hereby ratify and confirm forever my said gift and deed to him: and I give and devise unto my said grandson, his heirs and assigns forever, all my other lands in that vounty, except the premises above devised to [Page 30 / Page 31] my said son. And I also give and devise unto my said grandson, John Hunter and his heirs, my farm on Throgs Neck, in Westchester county, known as the Bayard farm, with the buildings and appurtenances thereof, upon condition however that he shall not sell or dispose of this farm, until he shall have obtained the age of twenty-five years. Fourth. Upon the decease of my said son, and within forty days thereafter, it is my desire that my said grandson John Hunter, shall have his election either to remain in the occupation of the Bayard farm, or to remove to Hunter's Island, where I now reside: and in case he should elect to remove to Hunter's Island, that he will lease to his mother and his three sisters, Elizabeth, Ann and Adele, the Bayard farm with its cottage, for their residence, free of rent as long as they shall remain single, and desire to occupy the same. In the event of my said grandson electing to remove to Hunter's Island, and providing a residence for his mother and sisters as aforesaid, in accordance with my wishes, then I give and devise until my said grandson, John Hunter, his heirs and assigns forever, Hunter's Island aforesaid, Hart Island and the Provoost farm, all in the said town of Pelham, with the buildings and appurtenances thereto belonging, from and after the death of my said son: and also a right of way with cattle and teams over the lane now used by me across my farm commonly called and known as the Sackett farm, situated in the said town of Pelham, opposite Hunter's Island and getween the farms of Mr. Thatcher and Elbert Roosevelt, and also a right of way from the said lane, through the woods of said Sackett farm, to and from the said Provoost farm. But in case my said grandson should survive his said father and omit to make his election as aforesaid, then I order and direct my executors hereinafter named, and the survivor of them at their or his discretion, to sell and dispose of in fee simple, the said Hunter's Island, Hart Island and Provoost farm, with the right of way across and through the Sackett farm as aforesaid, at public or private sale for cash, or on credit, as may be deemed best; and upon making such sale, or sales, and receiving the purchase money or security for the same, I authorize and empower my said executors and the survivor of [Page 31 / Page 32] them to execute and deliver to the purchaser or purchasers thereof good and valid deeds of conveyance for the same, in due form of law. And the net proceeds of such sales I direct to be divided into two equal parts, which I dispose of as follows: One equal part thereof I give and bequeath unto my said grandson John Hunter, absolutely forever; and the other equal part I give and bequeath unto his said three sisters, Elizabeth, Ann and Adele, and their legal representatives, share and share alike, forever. But should my said grandson die before his said father, leaving lawful issue, then on the death of my said son, I direct may said executors to sell the said Hunter's Island, Hart Island and Provoost farm, with the right of way as aforesaid; and the proceeds thereof I give and bequeath as follows: One-fourth part thereof to the issue of my said grandson, and one-fourth part thereof to each of my said grand daughters or their legal representatives absolutely, forever. And in case my said grandson should die before his said father, leaving no issue him surviving, then upon the death of my said son I give and devise the said Hunter's Island, Hart Island and Provoost farm, with the said right of way, to my said three granddaughters, Elizabeth, Ann and Adele, equally in fee. Fifth. I give and devise unto my said granddaughters Elizabeth D. Hunter, Ann M. Hunter and Adele Hunter, all my lands in great lot number twenty-five (25) in the Hardenburgh patent lying in the county of Greene, and all my other lands in the said county of Greene, from and after the death of my said son, share and share alike forever. And also my said Sackett farm from and after the death of my said son, to be divided into three parts as follows: the first part being all that portion of said farm lying between the creek on the southerly side, the farm of Mr. Thatcher on the westerly side, my Provoost farm on the northerly side, and a straight line to be run from the said creek up to and through the center of the lane leading through said Sackett farm to the said Provoost farm, containing by estimation fifty acres of land, I give and devise to my said granddaughter Ann M. Hunter, her heirs and assigns forever, from and after the death of my said son, subject to the right of way as aforesaid. All that portion [Page 32 / Page 33] of said Sacket farm, containing by estimation fifty acres, and lying between the easterly line of the piece hereby devised to my said granddaughter Ann, and a straight line to be run northerly and southerly through the said Sackett farm, from the said creek to the Provoost farm, so as to divide the residue of said Sackett farm into two equal parts, I give and devise to my said granddaughter Elizabeth D. Hunter, her heirs and assigns forever, from and after the death of my said son, subject to the right of way as aforesaid. And all that portion of my said Sackett farm lying between the easterly line of the piece hereby devised to my said granddaughter Elizabeth, and the farm or land of Elbert Roosevelt, containing by estimation fifty acres, I give and devise to my said granddaughter Adele Hunter, her heirs and assigns forever, from and after the death of my said son. In case any of my granddaughters should die before the termination of the life estate of my said son, leaving lawful issue or lineal descendants her surviving, then I give and devise to such lawful issue or lineal descendants, the same share which the mother would have taken if she had lived. And in case any of my said granddaughters should die without leaving lawful issue or lineal descendants, then the share of the one so dying shall be divided equally between her surviving sisters and the issue of such of them as may then be dead. Sixth. I give and devise to my said granddaughter Elizabeth D. Hunter, in fee from and after the death of my said son, my house and lot number seventy-two (72) Walker-street, in the city of New-York, purchased from the estate of the late Peter Jay Munro. In case the said Elizabeth should die before the termination of the life estate of my said son, leaving lawsul issue or lineal descendants her surviving, then I give and devise the said house and lot to such lawful issue or lineal descendants. But should the said Elizabeth die before the termination of such life estate, leaving no issue or lineal descendants her surviving, then I give and devise the said house and lot, after the death of my said son, unto my granddaughters Ann and Adele, or such of them as shall be living at the death of my said son, and the issue of them as may then be dead. Seventh. I give and devise to my said grand- [Page 33 / Page 34] daughter, Ann M. Hunter, in fee, from and after the death of my said son, my house and lot number seventy-four (74) Walker-street in the city of New-York, purchased from the estate of the late Peter Jay Munro. In case the said Ann should die before the termination of the life estate of my said son, leaving lawful issue or lineal descendants her surviving, then I give and devise the said house and lot to such lawful issue, or lineal descendants. But should the said Ann die before the termination of such life estate, leaving no issue or lineal descendants her surviving, then I give and devise the said house and lot, after the death of my said son, unto my granddaughters Elizabeth and Adele, or such of them as shall be living at the death of my said son, and the issue of such of them as may then be dead. Eighth. I give and devise unto my said granddaughter Adele Hunter, in fee from and after the death of my said son, two of my houses and lots in Elm-street, in the city of New-York, described in a conveyance to me therefor, as numbers eighty-five (85) and ninety-one (91). In case the said Adele should die before the termination of the life estate of my said son, leaving lawful issue or lineal descendants her surviving, then I give and devise the said houses and lots to such lawful issue or lineal descendants. But should the said Adele die before the termination of such life estate, leaving no issue or lineal descendants her surviving, then I give and devise the said houses and lots, after the death of my said son, unto my granddaughters Elizabeth and Ann, or such of them as shall be living at the death of my son, and the issue of such of them as may then be dead. Ninth. I give and bequeath unto my said grandson John Hunter, all my stock in the Westchester County Bank, all my stock in the Tanners' Bank at Catskill, and all such bonds and mortgages and other securities and moneys which may be in the hands of my friend James Powers, Esquire, at the time of my decease: subject, however, to the payment of the legacies hereinafter given to his sisters, and subject also to such costs and charges as may exist against the same. And I do also hereby ratify and confirm the gift heretofore made by me to my said grandson, of a certain bond and mortgage upon lands in Newtown, Queens [Page 34 / Page 35] county, executed by my brother Robert R. Hunter, unto me. To have and to hodl the said bond and mortgage with the moneys due and to grow due thereon, unto my said grandson for his own use absolutely forever. Tenth. I give and devise all the lands I own throughout the state purchased at tax sales, or obtained from my brother Robert R. Hunter, or from the assignees of John Kiersted, except my lands in the county of Sullivan, unto my said granddaughters, Elizabeth, Ann and Adele, share and share alike, forever; which lands I hereby authorize and empower my executros, or whoever shall execute this will, to sell at public or private sale, in their or his discretion, and to execute good and valid deeds of conveyances for the same: and to invest the proceedss of such sales on bond and mortgage, on unincumbered real estate of double the value of the sum so invested, for the benefit of my said granddaughters. Eleventh. I give and bequeath unto my said granddaughters, Elizabeth, Ann and Adele, each the sum of twenty thousand dollars, and I direct the same to pbe paid to them immediately after my decease out of my personal estate. Twelfth. I give and bequeath unto my said grandson John Hunter, from and after the decease of my said son, all my plate, books, and pictures, household furniture, horses, carriages, harness, farming utensils, and stock, on my farms. Thirteenth. I give and devise unto Mary Mills, now residing with me, the use and enjoyment of the island, formerly called Hog Island, purchased by me from Captain Sheffield, and of the land purchased by me from Elbert Roosevelt, contiguous thereto, up to the post road, as long as she shall remain unmarried, and upon her death or marriage, I give and devise the same unto my grandson, John Hunter, forever. Fourteenth. I give and bequeath unto the said Mary Mills, an annuity of three hundred dollars a year, as long as she shall remain unmarried; and I direct the same to be paid to her in half-yearly payments of $150 each, out of the income of my personal estate, any thing hereinbefore contained to the contrary notwithstanding. Fifteenth. It is my will that all my grandchildren be liberally educated. I do therefore direct my executors, or whoever shall execute this will, to have them educated in the best manner out of the income [Page 35 / Page 36] of my estate; and I do hereby charge the expenses thereof upon such income, any thing herein before contained, to the contrary notwithstanding. Sixteenth. I do hereby authorize and empower my executors or whoever shall execute this will, to sell and dispose of my bank and other stocks, as he or they may think proper, and in case of a sale of any part thereof, I direct the proceeds of the stock so sold, to be immediately invested upon bond and mortgage, on unincumbered real estate, of double the value of the sum invested, for the benefit of the legatees thereof, under this my will. Seventeenth. All the rest, residue and remainder of my real estate, not hereinbefore otherwise disposed of, I give and devise to my said grandson, John Hunter, subject to the life estate of his father, in fee simple forever. And in case he should die before the termination of this father's life estate, leaving lawful issue, or lineal descendants him surviving, then I give and devise the said residue of my real estate, from and after the death of my son, unto such lawful issue or lineal descendants. But should my said grandson die before the termination of said life estate, leaving no lawful issue or lineal descendants him surviving, then I give and devise the said residue of my real estate unto my said three granddaughters and the issue of such of them as may ten be deae, in representation of its deceased parent, share and share alike, forever. Eighteenth. All the rest, residue and remainder of my personal estate not hereinbefore otherwise disposed of, I give and bequeath unto my said grandson and granddaughters or their legal representatives from and after the death of my said son, equally share and share alike, forever. Nineteenth. I hereby nominate, constitute and appoint my son Elias Desbrosses Hunter, and my said grandson John Hunter, the executors of this my will; and in case the said John Hunter should die before his father, then I appoint my said granddaughter Elizabeth D. Hunter as a executrix of this my will, in his place. Twentieth. I direct and request my said son to pay all taxes and assessments, which may from time to time be imposed upon the real and personal estate, the use of which I have given to him during his natural lief. And inasmuch as my son is the natural guardian of his children, it is my will and [Page 36 / Page 37] desire that he, as my executor, should continue and be during their respective minorities the trustee of the estates and interests which I have given unto my said grandson and granddaughters. Twenty-First. Whereas many contracts for the sale of portionss of my real estate may be made by me in my lifetime, and remain unperformed at my decease, I do therefore authorize and empower my executors or whoever shall execute my will, to carry such contracts into effect, and perform the conditions thereof as fully as I could do if living; and to execute and deliver to the persons with whom such contracts have been made by me, good and sufficient deeds for such lands and premises. And the proceeds of such contracts and sales shall be invested by my executors or whoever shall execute my will, on bond and mortgage for the benefit of the devisees thereof, under this my will, in the same manner as other investments are hereinbefore directed to be made. Twenty-second. I do hereby authorize and empower my executors, or whoever shall execute this will, to lease or sell such wild lands, as he or they may in their or his discretion think proper, and to execute good and sufficient deeds therefore, and to invest the proceeds of such sales on bond and mortgage, for the benefit of the devisees thereof, under this my will, in the same manner and with the like securities as other investments are hereinbefore directed to be made.'
The complaint then alleged the making of a codicil to this will by the testator, on the 8th of September, 1852, as follows:
'Whereas I have in my saide last will and testament, given to my grandson, John Hunter, his election in a certain contingency, either to remain in the occupation of the Bayard farm or to remove to Hunter's Island, where I now reside. Now, therefore, in case my said grandson, John Hunter, shall make his electionn on the happening of the contingency aforesaid, to remove to Hunter's Island, then I order and direct my said grandson, John Hunter, to execute to his sisters, Elizabeth D. Hunter, Ann M. Hunter, and Adele Hunter, a conveyance in fee simple of the said Bayard farm, with its appurtenances, subject to the use and occupation thereof by his mother and his said sisters so long as they respectively remain single and unmarried; and if any of [Page 37 / Page 38] them are then dead or married, then subject to the use and occupation thereof by the survivors or residue of them so long as they respectively remain single and unmarried -- the survivor or survivors to remain in and have the use and occupation thereof so long as they respectively remain single and unmarried. And whereas I have in my said last will and testament, devised large real estate to my said grandson, John Hunter, now therefore, in case the said John Hunter, (my grandson) shall die without leaving any lawful children or descendants at the time of his death, I give, devise and bequeath all and every part and portion of said real estates to my said granddaughters, Elizabeth D. Hunter, Ann M. Hunter, and Adele Hunter, their heirs and assigns forever. And whereas I have in the twenty-first clause or section of my said last will and testament, conferred certain powers and imposed certain duties upon my executors, or the person or persons executing my will, in regard to certain contracts for the sale of portions of my real estate, and the proceeds and investment of the avails thereof: -- Now therefore, I desire to make the subjects of that clause or section, and the powers and duties of the persons executing my will in relation thereto, more clear and comprehensive; and I desire to embrace, and do hereby include within the operation of that clause or section, all contracts for the sale of portions of my real estate, whether made before or after the date and execution of said will, or before or after (at any time during my life) the date and execution of this codicil thereto, and I desire to confer and impose and do hereby confer and impose, the same powers and duties in relation thereto upon the survivor or survivors of my executors that I have therein conferred or imposed upon my executors, or whoever shall execute my will. And whereas some or all of said contracts do or may embrace covenants or conditions in regard to said lands, on my part to be fulfilled, performed and kept, now therefore, I desire and direct my said executors or the survivor or survivors of them, or whoever may execute my said will and this codicil, to fulfill, perform and keep such covenants and conditions, so far as it may be lawful for them to do so in their said character of executors or persons executing my will [Page 38 / Page 39] and so far as it may be lawful and proper for them as such executors or persons executing my will to do so, to insert in the instruments and conveyances to be executed by them the necessary covenants and conditions to carry out and effectuate the said contracts, and the covenants, conditions and provisions thereof, and so far as it may be lawful and proper for them to do so in the character aforesaid, and without incurring personal liability in that behalf, to bind my estate and assets to the performance and execution of such covenants and conditions -- intending hereby to confer upon them full power and authority to execute and carry out said contracts in the same manner, and to the same extent, as I might, could or ought to do if living. And whereas I have heretofore paid, or agreed to pay, and am or hereafter may be liable to pay, certain costs, counsel fees and expenses in establishing or defending the line between the Hardenburgh patent and the Rochester pagent, and also in establishing or defending my title to great lots Nos. 4 and 5 in the Hardenburgh patent, in and by my said will devised to my said grandson, John Hunter, now therefore, it is my will and intention, and I do hereby order and direct that my said grandson, John Hunter, shall be liable for and pay all of said costs, counsel fees and expenses for which I am or hereafter may be so liable for as aforesaid, and also all such as I have heretofore paid or may hereafter pay, or become obligated to pay in my lifetime.'
The complaint then alleged that on the 25th day of September, 1852, the said will and codicil were duly admitted to probate, and proved and recorded as a will, both of real and personal property, before the surrogate of the co0unty of Westcheaster, where the said John Hunter resided, at the time of his death, and at the same time letters testamentary thereon were granted to the plaintiff alone, the other executor named therein, to wit, John Hunter, jun. then and still being under the age of twenty-one years. And the plaintiff further stated that the said John Hunter, deceased, at the time of his death, died without leaving any widwo, and without leaving any next of kin or heirs at law him surviving, except the plaintiff, Elias D. Hunter, who is the son of the said John Hunter, deceased. And the plaintiff fur- [Page 39 / Page 40] ther stated that various questions had arisen as to the valideity and as to the true intent, meaning and construction of various devises, bequests and provisions contained in the said will and codicil, and as to the legal effect thereof, and as to the disposition and appropriation of the property of the said John Hunter in pursuance thereof, and as to the nature and extent of the interest and estate of the said John Hunter, in the property and moneys therein devised, bequeathed and disposed of, and as to the personal estate and assets, which under the provisions of said will, should bo upon the inventory of, and be accounted and estimated as part of the personal estate and assets of the said John Hunter, deceased, and that the plaintiff, both in his individua and representative capacity as executor of the last will and testament of the said John Hunter, deceased, was embarrassed in the execution of his duty and apprehensive that he might make mistakes and incur hazard and responsibility in the disposition of the property under said will and codicil, and the plaintiff believed and charged that it was important and necessary that said questions should be judicially determined, and said provisions, devises and bequests receive a judicial construction, and that all parties interested, so far as the plaintiff has been enabled to ascertain, were willing and desirous to have the same construed and determined by the judgment of this court without delay, and that the interest of all parties required that the same should be done. And the plaintiff further stated that the said John Hunter, at the time of his death, was seised and possessed in his own right, and in that of his wife, of large real and personal estates, the same or a part thereof lying and being in several counties in this state, and among others in the counties of Westchester, Albany, Broome, Cattaraugus, Chautauque, Chemung, Chenango, Clinton, Cortland, Delaware, Essex, Franklin, Fulton, Greene, Hamilton, Herkimer, Jefferson, Lewis, Madison, Monroe, Niagara, Oneida, Onondaga, Orange, Ontario, Otsego, Oswego, Rensselaer, Richmond, Rockland, Scholarie, Saratoga, Seneca, Steuben, Sullivan, Tioga, Ulster, Warren, Washington, Wayne, and Yates in the state of New-York. . . .
Source: Elias D. Hunter vs. John Hunter, Jun., Elizabeth D. Hunter, Ann M. Hunter, Adele Hunter and Elias D. Hunter, Jun., in Reports of Cases in Law and Equity in the Supreme Court of the State of New York, Vol. XVII, pp. 25-40 (Dutchess Co. Sup. Ct., July, 1853) (NY, NY: Banks & Brothers, Law Publishers, 1859).
* * * * *
I have written about John Hunter, his mansion, and Hunter's Island on many occasions. Below are a few examples.
Fri., Dec. 2, 2005: John Hunter of Hunter's Island in Pelham, New York.
Wed., Dec. 14, 2005: New Information About John Hunter's Acquisition of Hunter's Island in the Manor of Pelham.
Thu., Apr. 27, 2006: Burial Place of John Hunter (1778 - 1852) of Hunter's Island.
Mon., Aug. 14, 2006: An Early Account of a Visit to Hunter's Island and John Hunter's Mansion in Pelham.
Mon., Aug. 28, 2006: John Hunter of Hunter's Island in Pelham Obtained Special Tax Relief in 1826.
Tue., Nov. 21, 2006: John Hunter Loses a Debate in the State Senate During the Winter of 1841.
Fri., Dec. 15, 2006: References to John Hunter of Pelham Manor in the Papers of President Martin Van Buren.
Thu., Jan. 17, 2008: A Little More Information About John Hunter of Hunter's Island.
Mon., Nov. 10, 2014: Obituaries And Notice of Art Auction Published Upon the Death of John Hunter of Hunter's Island in 1852.
Wed., Jan. 28, 2015: Pelham Manor Resident Pushed for Removal of the Causeway from Shore Road to Hunter's Island in 1902.
Order a Copy of "Thomas Pell and the Legend of the Pell Treaty Oak."
I have written about John Hunter, his mansion, and Hunter's Island on many occasions. Below are a few examples.
Fri., Dec. 2, 2005: John Hunter of Hunter's Island in Pelham, New York.
Wed., Dec. 14, 2005: New Information About John Hunter's Acquisition of Hunter's Island in the Manor of Pelham.
Thu., Apr. 27, 2006: Burial Place of John Hunter (1778 - 1852) of Hunter's Island.
Mon., Aug. 14, 2006: An Early Account of a Visit to Hunter's Island and John Hunter's Mansion in Pelham.
Mon., Aug. 28, 2006: John Hunter of Hunter's Island in Pelham Obtained Special Tax Relief in 1826.
Tue., Nov. 21, 2006: John Hunter Loses a Debate in the State Senate During the Winter of 1841.
Fri., Dec. 15, 2006: References to John Hunter of Pelham Manor in the Papers of President Martin Van Buren.
Thu., Jan. 17, 2008: A Little More Information About John Hunter of Hunter's Island.
Mon., Nov. 10, 2014: Obituaries And Notice of Art Auction Published Upon the Death of John Hunter of Hunter's Island in 1852.
Wed., Jan. 28, 2015: Pelham Manor Resident Pushed for Removal of the Causeway from Shore Road to Hunter's Island in 1902.
Detail from 1905 Map Showing Area Addressed in Frederick H. Allen's
Statement Including the Stone Causeway Leading to Hunter's Island.
of the Bronx Easterly of the Bronx River" (1905) (Lionel Pincus and Princess
Firyal Map Division, The New York Public Library).
NOTE: Click on Image to Enlarge.
Order a Copy of "Thomas Pell and the Legend of the Pell Treaty Oak."
Labels: 1852, Adele Hunter, Ann M. Hunter, Elias Desbrosses Hunter, Elizabeth DeBrosses Hunter, Hunter's Island, Hunter's Island Causeway, Hunter's Island Mansion, John Hunter, John Hunter Junior
posted by Blake A. Bell @ 5:10 AM
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