FREDERICK H. SPICER and HARRY A. SPICER, as Executors, etc., of CHARLOTTE PAMELIA SPICER, Deceased, Appellants,
CORA STRYKER CONNOR and Others, Appellants, Impleaded with JOHN J. PEPPER and Others, Respondents.
APPEAL by the plaintiffs, Frederick H. Spicer and another, as executors, etc., and by the defendants, Cora Stryker Connor and others, from a judgment of the Supreme Court in favor of certain of the defendants, entered in the office of the clerk of the county of Steuben on the 19th day of September, 1908, upon the decision of the court rendered after a trial at the Steuben Trial Term, a jury having been waived.
The judgment declares that the plaintiff and all the other defendants not above named have no interest in the lands
mentioned in the amended complaint, but, on the contrary, adjudges that the defendant John J. Pepper is the owner in fee simple of the lands mentioned in the amended complaint, subject to the inchoate dower interest of his wife, Hattie B. Pepper, and subject to the interest of Rufus Baldwin, the defendant, as mortgagee.
The action was commenced on the 12th day of February, 1907, by Charlotte Pamelia Spicer to obtain the partition of a lot in the village of Addison, Steuben county. After the rendition of the judgment the plaintiff died and the present plaintiffs, her executors, were substituted.
Friend H. Miller [James O. Sebring, Charles M. Marvin and Thomas Shannon with him on the brief], for the appellants.
Delmar M. Darrin [William Carter with him on the brief], for the respondents.
MCLENNAN, P. J.:
While the tract of land involved in this particular action is not a large one, yet it appears that a multitude of actions are now pending to which the appellants and the owners of other lands are parties, the ultimate disposition of which will affect the title to some 4,000 acres of land in Steuben county.
The respondent John J. Pepper is the owner through various mesne conveyances of the lot described in the complaint, and which was a part of the lands owned by William Wombough at the time of his death. The respondent Hattie B. Pepper has an inchoate dower interest in the premises, and Rufus Baldwin holds a mortgage on it. All the other defendants answered, consenting to the relief demanded by the complaint. So that the respondents take one side of the controversy and the plaintiff and all the rest of the defendants, being the appellants, take the other side of the controversy, and for convenience I will refer to them as respondents and appellants respectively.
On the 21st day of May, 1853, William Wombough died at Addison, N.Y. , owning large tracts of land in New York and Pennsylvania, including the lands mentioned in the complaint.
He left a last will and testament, dated February 19, 1853, which was duly probated by the Steuben county surrogate on the 16th day of June, 1853, as a will devising and bequeathing all of his real and personal property. The will was of some length and the material portions of it are as follows:
'Item 5. I give and bequeath to my children, Pamelia, now Pamelia Baldwin, Henry Wombough, Ann Eliza, now Ann Eliza Bennett, Sarah Louisa, now Sarah Louisa Murdock, Julia Jane, now Julia Jane Farnham, Martha Mahala, now Martha Mahala Brewster, and Addison Wombough, seven equal undivided shares of all the residue of my real estate and chattels real, wheresoever situated which real ...