sixteenth clause in New York

1889In the case of Smith v. Edwards, 88 N. Y. 92 , the will of the testator directed, by the sixteenth clause as follows: “ I have $30,000 invested in United States registered bonds which I order and direct to have kept invested until my youngest grandchild, now born, or that may hereafter be born before final distribution of my estate, shall be of full and lawful age; and that my executors out of the interest and net increase thereof, keep up and in good order and condition all stones, railings, etc., in and about the Edwards’ lot in the Fayetteville Cemetery; . . . . and that they make up out of

1889In the case of Smith v. Edwards, 88 N. Y. 92 , the will of the testator directed, by the sixteenth clause,- as follows: “I have $30,000 invested in United States registered bonds, which I order and direct to have kept invested until my youngest grandchild, now born, or that may hereafter be born before final distribution of my estate, shall be of full and lawful age; .and that my executors, out of the interest and net increase thereof, keep up and in good order and condition all stones, railings, etc., in and about the Edwards lot, in the Eayetteville cemetery; * * * and that they make up ■out

1930In Martin v. Crossley ( 46 Misc. 254 ) Mr. Justice Scott, writing for the Appellate Term, called attention to two clauses in the lease there under consideration, which gave the landlord two alternative remedies, and held as follows: “ The sixteenth clause provides as has been said that in case of a breach of condition the landlord may give a five days’ notice of intention to determine the lease.

1914But it is argued by objectant that the use of the word ££ all ” in the third subdivision of the sixteenth clause of the will pre- ; vents the construction that the testator contemplated the ter- I mination of the trust before the death of three annuitants. ' Certainly in Ahern v. Ahern, 52 App. Div. 356 ; not 'cited to me,' the ruling did turn on the use of the word ee all.” But the lan- . guage of Mr. Butler’s will is different from that in Ahern v. 6 Ahern.

1904The practice adopted by the referee was proper, is justified by the decisions of this court, and constituted no error. , (Russell v. McCall, 141 N. Y. 437 ; Canton Brick Co. v. Howlett, 169 N. Y. 293, 297 .) The appellant likewise contends that the referee erred in denying' his motion to amend his pleadings so as to demand *355 judgment for certain securities which had come into the possession of the plaintiffs, .'and to permit him to recover therefor in this action.

1904The practice adopted by the referee was proper, is justified by the decisions of this court, and constituted no error. , (Russell v. McCall, 141 N. Y. 437 ; Canton Brick Co. v. Howlett, 169 N. Y. 293, 297 .) The appellant likewise contends that the referee erred in denying' his motion to amend his pleadings so as to demand *355 judgment for certain securities which had come into the possession of the plaintiffs, .'and to permit him to recover therefor in this action.

1889Also, see, Holland v. Alcock, 108 N. Y. 312 , 16 N. E.

1880App. Dec., 108; Schettler v. Smith, 41 N. Y., 328 .) The. result is that in respect to the property mentioned in the sixteenth clause of the will, intestacy has happened, and such property has descended to the testator’s next of kin.

1869Stat., 729, § 60; 730, §§ 63, 65; Hawley v. James, 16 Wend., 121 , 122 ; Coster v. Lorillard, 14 Wend., 303 , &c.; Hawley v. James, 5 Paige, 445 ; Williams v. Williams, 8 N. Y., 531 ; Harris v. Clarke, 7 N. Y., 242 .) I think it is plain, that neither the absolute power of alienar tian of the residuary real estate, nor the absolute ownership of the residuary personal property, could in this case lawfully be suspended from and after the death of the widow to the time of the distribution or actual division.