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and 136 New York State Reporter the use of his wife so long as she may survive. The testator then directs that on the death of his wife, or upon his own death, if the wife shall fail to survive, the executors, and the survivor of them and his successors, to sell and convey all his real estate not heretofore sold and conveyed, and to convert the whole of his estate into personalty and to distribute as follows:
“A. To pay the sum of four thousand dollars to the children of my wife's sister, Babette Erdman, which amount I give to said children absolutely. B. To pay the sum of four hundred dollars to my sister, Esther, widow of Simon Seaburger, deceased, absolutely. C. To retain the sum of four thousand dollars for the use of my executors jointly, or the survivor or survivors of them absolutely."
The testator then directs that the balance remaining shall be divided into six shares, which shall be transferred to or held for the life of testator's brothers or sisters, the principal in the case of one brother and one sister to be paid immediately to the designated brother and sister, and the principal of the other four shares to be held for the designated brother and three sisters, the principal upon the death of the life tenant to be paid to the next of kin of said life tenant. There is no question raised as to the persons entitled to take under the residuary clause of the trust except as to the one-sixth share directed to be set aside for the benefit of Fanny Blumenthal or her next of kin. The testator died December 8, 1880. His widow died February 7, 1905. His sister, Fanny Blumenthal, died in 1890, leaving three children, Samuel, Henry, and Celia. Samuel died September 20, 1899, leaving a widow and seven children, six of whom survived Yette Broneman. Henry Blumenthal died April 3, 1898, leaving a widow and three children, all of whom are now living. Celia Blumen-hal died July 27, 1902, leaving two children, who are now living. Esther Seaburger died in 1893, leaving one daughter, the defendant Hannah Meyer. The plaintiffs have duly converted testator's real estate and have received the personal property, and all the debts of the estate have been paid.
The only questions submitted to the court with respect to which a construction of the will is asked herein are as follows: (1) Should the bequest of $500 made to Esther Seaburger be paid to the administratrix of Esther Seaburger or has said bequest lapsed? (2) Should the sum of $1,000 be paid to the executor of the survivor of the executors named in the will, or has it lapsed, or should it be construed as a secret trust in favor of the Jewish congregation in Bavaria ? The disposition of one-sixth of the residuary estate under the will which was directed to be held for the use of decedent's sister, Fanny Blumenthal, for life. The questions thus submitted will be considered in their order.
First. The disposition of the $500 legacy to Esther Seaburger. In determining this question, it is necessary to ascertain, if possible, from a reading of the will, the intention of the testator, and, when such intention can be so ascertained, it is the duty of the court to carry out the wishes of the testator. The legacy to Esther Seaburger reads: "B. To pay the sum of five hundred dol'ars to my sister absolutely." While the bequests made in subdivision D of paragraph “Thirdly" contain a gift over to the children or next of kin of his other sisters and brother, the testator intended to give this sister an absolute gift of $500, to be paid to her upon the death of the testator's widow. In the Matter of Young, 145 N. Y. 535, 40 N. E. 226, the will set apart the sum of $1,000 for the use of the testator's widow for life, and after her death the same was to be equally divided among the testator's children. It was held that the children took vested remainders in the fund, subject to the life use thereof by the widow, and that the payment thereof was postponed until her decease so as to enable the estate to first meet that burden. The intention of the testator was to vest title in Esther Seaburger, the legatee, at the time of the testator's death, but postponing the payment thereof until the death of the testator's wife, and therefore at her death the legacy passed to her next of kin, and Hannah Meyer, the administratrix, is entitled to receive the same.
Second. As to the disposition of the legacy of $4,000 left to the executors. Attached to the will is a letter from the testator addressed to the executors, bearing the same date of the will, which reads as follows:
"New York, March 10th, 1880 "Gentlemen: In my will, dated this day, I give to you the sum of four thousand dollars absolutely. This amount I give you in trust to pay it over to the officers of the oldest Jewish congregation in Altenmuhr, Bavaria, the interest thereon to be applied by said officers in the relief of Israelites in indigent circumstances in that locality, especially such of my own relatives as may need assistance."
On the trial the attorney who drew the will testified that the method of giving the legacy to the executors, with a letter of instruction containing the testator's real intention, was adopted because there was doubt in the attorney's mind as to the power of the congregation to take such a legacy. It was further established that one of the executors had declared that he knew that it was given for the benefit of the Jewish congregation in Altenmuhr, and declared his intention to pay same over to the congregation. It further appeared that the congregation were empowered under the laws of Bavaria acquire all kinds of property, especially by last will and testaments. In Matter of O'Hara, 95 N. Y. 403, 47 Am. Rep. 53, it was held that if the testatrix, in her letter of instruction, had named sine certain and definite beneficiary capable of taking the provision intended, the law would fasten upon the legatee a trust for such beneficiary and enforce it if necessary. The letter attached to the will, and the evidence submitted on the trial, clearly establishes the fact that the legacy was never intended as an absolute gift to the executors, but was intended to be held by them in trust for the Jewish congregation in Bavaria. The trust thus being created, this court having jurisdiction of the subject-matter, and, following the well-established rule in equity against multiplicity of actions, directs the payment direct to the officers of the congregation.
Third. As to the disposition of the one-sixth of the residuary estate directed to be held for the benefit of the testator's sister, Fanny and 136 New York State Reporter Blumenthal. A reading of the clause in the will relating to the division of the residuary estate shows that the testator had in mind a desire to treat his brother and sisters equally and making no provision for his nieces and nephew, except as they might take as next of kin. The authorities are uniform that the rule of construction is to ascertain the intention of the testator from the will as a whole, and that the distribution per stirpes is favored. See Ferrer v. Pyne, 81 N. Y. 281. I am, therefore, of the opinion that this one-sixtli share should be divided into three parts, and that the grandchildren of Fanny Blumenthal should take per stirpes and not per capita.
Submit findings in accordance with the views herein expressed.
(116 App. Div. 146.)
In re LOGAN. (Supreme Court, Appellate Division, First Department. October 27, 1906.) 1. ELECTIONS-NOMINATIONS_CONTESTS AND OBJECTIONS.
The Special Term has no jurisdiction to review the action of the board of elections overruling objections to a certificate of nomination on the petition of an elector who did not file objections to the certificate.
(Ed. Note.-For cases in point, see Cent. Dig. vol. 18, Elections, 8 136.] 2. APPEAL-QUESTIONS REVIEWABLE-FAILURE TO PRESENT QUESTION BELOW
On appeal from the Special Term, an objection that the Special Term had no jurisdiction may be considered, though it was not raised before that court.
(Ed. Note.-For cases in point, see Cent Dig. vol. 2, Appeal and Error, 88 1166, 1168, 1179.] Judicial proceedings in the matter of the application of William B. Logan concerning the certificate of nomination of John A. Galvin and others as candidates to be voted for at the election of November 6, 1906, in the city of New York. Orders of the Special Term vacated.
Argued before O'BRIEN, P. J., and INGRAHAM, LAUGHLIN, CLARKE, and SCOTT, JJ.
Herbert R. Limburg, for petitioner.
PER CURIAM. In all the matters in which William B. Logan was petitioner before the Special Term it is unnecessary to decide any question except his right to institute the proceeding in the Supreme Court. Each of these matters presents the question as to whether a review of the action of the board of elections may be had on the petition of an elector who did not file objections to the certificate, who was not a candidate affected by the decision of the board, or a member of a committee representing the nominators and authorized to fill vacancies.
Our attention has been drawn since the argument to the case of Fernbacher v. Roosevelt, 90 Hun, 441, 35 N. Y. Supp. 898, in which the General Term of this Department expressed views favoring such right of review. But a subsequent decision of the Court of Appeals (Matter of Social Democracy, 182 N. Y. 442, 75 N. E. 415), although not expressly referring to Fernbacher v. Roosevelt, in effect overrules that decision. The Court of Appeals there clearly held that the fi.ing of objections to a certificate of nomination with the proper board or body under the statute is the institution of a special proceeding, and that the parties thereto are the objector and those to whom notice is required by the statute to be given, who are the candidate whose rights may be affected and the committee representing the nominators, and that, where the objections are overruled, the matter can only be reviewed by the court on the petition of a person who filed objections, The logical effect of that decision is that where, as here, the objections were sustained, the decision can only be reviewed on the application of the candidate or of the committee representing those who placed him in nomination.
It is claimed that this objection was not taken at the Special Term, and that it has, therefore, been waived. On the other hand, it is asserted that the objection was raised at the Special Term; but it does not so appear in the order. However that may be, under the decision of the Court of Appeals, it was jurisdictional, and, the question hav. ing been raised here, it is our duty to vacate the order in each of these proceedings, and dismiss the proceedings.
(116 App. Diy. 142)
In re QUIMBY. (Supreme Court, Appellate Division, First Department. October 27, 1906.) ELECTIONS-NOMINATIONS-CONTESTS-EVIDENCE-ADMISSIBILITY.
When an independent political body engages in nominating candidates, and there is established an organization consisting of an executive conimittee and local committees for smaller political divisions, with proper officers engaged in a common purpose of nominating, the affidavits of such executive officers are competent evidence as to whether a particular candidate is a legitimate candidate of that body. or a mere intruder, endeavor
ing to obtain the benefit of the body's name and emblem. Judicial proceedings in the matter of objections to certificates of nomination of candidates to be voted for at the election of November 6, 1906. The order of the Special Térm denying an application to set aside the determination of the board of elections affirmed in the matter of the application of one Quimby.
Argued before O'BRIEN, P. J., and INGRAHAM, LAUGHLIN, CLARKE, and SCOTT, JJ.
Herbert R. Limburg, for petitioner.
PER CURIAM. Quimby filed papers alleged to be sufficient to nominate him for member of Congress in the Eighth congressional district. These papers, when produced, disclose that some of the papers filed include not only a nominee for Congress in the Eighth district, but a nominee for member of Assembly in the First district, and therefore they fall within the rule as laid down by this court in the Matter of Bennet (herewith decided) 102 N. Y. Supp. 353.
and 136 New York State Reporter Secondly. The papers now on file contain only 1,022 names, of which signatures of enough are attacked by competent evidence establishing that the signers were nonresidents of the district, or nonregistered voters, or that the certificates of acknowledgment were fatally defective, to reduce the number to less than 1,000, which is the number required to complete the nomination. The claim is made that, when the papers were filed, they included a number of sheets containing a number of names more than enough to supply the deficiency, and it is claimed that said sheets have been abstracted or lost since they were de'ivered into the custody of tke board of elections. The defect in the proof is that, even if such affidavits could be received to supply the deficiency upon the face of the papers, they are insufficient to establish the facts alleged to exist. Neither the names of the alleged signers are given, nor is any proof submitted from any of them that they did sign, or that the papers were properly executed and acknowledged.
The third objection is that the candidate is not the candidate of the Independence League and entitled to the use of its name and emblem; and as proof of that the affidavit of the chairman of the executive committee of the Independence League is offered. We are of the opinion that when an independent body of the kind and nature that the papers in the numerous proceedings which have been before us at this term of the court disclose engages in nominating candidates for office, and there is established an organization consisting of an executive committee for the whole city, and local committees for the various smaller political divisions, with proper officers, engaged in a common purpose of nominating, the affidavits of the executive officers of such an independent body are competent evidence as to whether or not particular candidates are the legitimate candidates of such body, or mere intruders, endeavoring to obtain the benefit of a party name and emblem heretofore established by others.
Certainly, in the absence of any satisfactory countervailing evidence, the affidavits of such executive officers are enough to justify the board of elections in determining that the candidates in whose favor they are made should be put on the ticket, to the exclusion of others which said officers repudiated.