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Hurlbert v. Hallock

Supreme Court of New York, Appellate Division

December 29, 1911

JOHN L. HURLBERT, as Administrator with the Will Annexed of DAVID WRIGHT, Deceased, Respondent,
v.
JOHN Y. GEROW and CLARENCE H. GEROW, as Executors of and Trustees under the Last Will and Testament of S. HUDSON WRIGHT, Deceased, and Others, Defendants, Impleaded with ERNEST HALLOCK and CARRIE E. HALLOCK, Individually and as Ancillary Administratrix, etc., of HENRY G. HALLOCK, Deceased, Appellants.

APPEAL by the defendants, Ernest Hallock and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Chautauqua on the 21st day of January, 1911, upon the decision of the court, rendered after a trial at the Niagara Special Term, construing certain provisions of the last will and testament of David Wright, deceased.

COUNSEL

Elton D. Warner, as guardian ad litem of the appellant Ernest Hallock, and attorney for the appellant Carrie E. Hallock.

Page 379

James L. Weeks, for the respondents Belle Hallock Colgan and others.

John L. Hurlbert, respondent, in person.

SPRING, J.:

The action was originally commenced by Sarah Wright Baker, the sole surviving executrix of the will of David Wright, late of the city of Dunkirk, deceased, to obtain a construction of such will, and the controversy involved the 5th, 6th, 7th and 8th paragraphs thereof.

The bequests to the 'Hallock' branch of the Wright family are alone before us for consideration, as no appeal has been taken by the parties affected thereby from that part of the judgment interpreting and giving effect to any of the other legacies contained in the will. Sarah Wright Baker died after the appeal to this court, and the plaintiff, who had been appointed administrator with the will annexed, was substituted as party plaintiff.

At the time of the execution of the will in February, 1894, David Wright had a wife and five children, each of whom had attained majority, and they were all alive at the time of his death in May, 1900. Within a few years death made a remarkable harvest among the members of the family. The widow died in April, 1905, and since that time four of the children have died, leaving Mary Tuthill the only surviving member of his family. His daughter, Adeline Hallock, was married at the time the will was made and had three children ranging in ages from twelve to nineteen years. At the time his will was made his daughters Sarah and Susan were unmarried, although the former married before the death of the testator. The son was married and had children born after the death of the testator. There are no other grandchildren than those mentioned.

Mrs. Adeline Hallock died September 5, 1908, leaving a husband and the three children surviving, and by will gave all her property to her husband, except three dollars. Her son Henry G. died in February, 1909, survived by his wife and a son then about one year old, and these two are the appellants in this action.

Page 380

By the earlier provisions of his will the testator made general bequests to each of his children and also provided for his wife. By the 5th paragraph he devised and bequeathed all the residue of his estate to his executors, 'and to the survivor of them, with full power to sell and convey any and all real estate that I may own at the time of my death, in trust nevertheless, for the purpose herein following. My executors shall divide the said residue and remainder into five equal shares and they shall pay the net rents, issues, income and profits of said property and estate annually, share and share alike, as follows: One share thereof to said Adeline M. Hallock or to the children of said Adeline M. for the support and maintenance of herself and children as the said executors may think best, subject to this provision. I have heretofore advanced to said Adeline M. Hallock more than ten thousand dollars ($10,000).'

He directed his executors to retain each year out of the income paid to said Adeline the sum of $1,000 until said sum of $10,000 be paid. The other four shares of the income were to be paid equally to the other four children, subject to a deduction of $1,000 a year in the share of Schuyler, to whom he had also advanced more than $10,000.

The 6th paragraph pertains entirely to the disposition of the corpus of the estate, and is in part as follows: 'The principal sum of said residue and remainder shall be divided by my executors at the death of the survivor of my daughters, Sarah and Susan, unless the survivor of them should live for more than twenty years after my decease, in which case I direct my executors to make division of said principal sum at the expiration of twenty years after my decease, as follows:' One-fifth to be paid to each of his two daughters, Sarah R. and Susan, the survivor to take in case the one first dying should die without issue and without disposing of her share by will; one-fifth to the daughter Mrs. Tuthill (who was forty-eight years of age when the will was executed), 'providing she shall be living at the date of the division of said principal sum of said remainder; one-fifth share ...


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