WILLIAM E. BLOODGOOD and WILLIAM R. WALKER, as Surviving Executors and Trustees under the Last Will of THOMAS LEWIS, Deceased, Respondents,
THOMAS LEWIS (the Younger of That Name) and Others, Appellants, Impleaded with THE KINGS COUNTY TRUST COMPANY, as Executor of and Trustee under the Will of MARY E. LEWIS, Deceased, Respondent, and FANNIE D. LEWIS and Others, Defendants.
APPEAL by the defendants, Thomas Lewis and others, from part of an interlocutory judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 21st day of October, 1910, upon the decision of the court rendered after a trial at the New York Special Term.
Frederick Wiener, for the appellant Thomas Lewis.
Joseph H. Choate, Jr., for the appellants John A. Lewis and others.
Henry H. Man, for the plaintiffs, respondents.
Willam P. Maloney, for the defendant, respondent.
The question involved in this appeal is the interpretation to be placed upon certain provisions of the will of Thomas Lewis, and of the codicil thereto. He died at the city of New York on January 1, 1892, leaving a will dated April 17, 1889, and a codicil dated November 16, 1891, both of which were duly admitted to probate January 25, 1892. He left him surviving four children, Thomas Lewis, John A. Lewis, Rosetta Lewis (now Hodgman) and Mary Elizabeth Lewis (since deceased). His personalty exceeded $500,000 in value and his realty was worth about $1,000,000.
At the time of the subscription of both the will and the codicil Mary Elizabeth Lewis was in an asylum in the State of Pennsylvania. By the 8th clause of the will, testator left his residuary estate to his executors in trust to hold during the joint lives of his two daughters and the life of the survivor of them, with directions as to the residue of the rents, issues and profits of his real estate and the whole of the net interest, dividends and income of his residuary personal estate, 'quarter yearly to divide, distribute and pay over to my two daughters and my two sons Thomas and John A. Lewis, in equal shares,
parts and proportions, that is to say: one equal fourth part to each of them.
'Provided, however, if my said daughter Mary Elizabeth Lewis shall continue to be of unsound mind or incapable of managing her own affairs, of which my daughter Rosetta E. Lewis shall, during her lifetime be the sole judge, then, and in such case, so long as the said Mary Elizabeth shall, in the judgment of said Rosetta, continue of unsound mind or incapable of managing her own affairs, the share of the rents and income of my said daughter Mary Elizabeth, which would otherwise be payable to her, shall be paid by my executors and trustees to my said daughter Rosetta, to be applied by her in the care and comfort of my said daughter Mary Elizabeth during such period of unsoundness or incapacity. But if my said daughter Rosetta shall die before the death of said Mary Elizabeth, then, during the residue of her life, or so long as she shall continue of unsound mind or incapacitated as aforesaid, then (and during the continuance of said trusts) the remaining executors and trustees shall apply the share of said Mary Elizabeth in said rents and income to her comfortable care and support while she so continues incapacitated.'
His codicil was as follows: 'I, Thomas Lewis, of the City of New York, having made my Last Will and Testament, bearing date the Seventeenth day of April, One thousand eight hundred and eighty-nine, do make and declare the following Codicil thereto:
'Whereas, in and by the Eighth clause of said will I did provide that my daughter Rosetta E. Lewis should be the sole judge as to whether my other daughter Mary Elizabeth Lewis should be at any time thereafter of unsound mind or incapable of managing her own affairs, and did impose upon the said Rosetta the duty of exercising such judgment and discretion, and I did also direct that in case in the judgment of said Rosetta my daughter Mary Elizabeth should continue of unsound mind or incapable of managing her own affairs, that then the share of the rents and income of the trust estate created by my will which would ...