In re Van Wagenen

New York Supreme Court

In re Van Wagenen

16 How. Pr. 6

DecidedApril 15, 1858

StatusPublished

This text of 16 How. Pr. 6 (In re Van Wagenen) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re Van Wagenen, 16 How. Pr. 6 (N.Y. Super. Ct. 1858).

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Opinion

Roosevelt, Justice.

The late Hubert Van Wagenen, by his will, which was made in 1847, in addition to an allowance for the support of the children, gave his widow an income for her life, of two thousand dollars per annum. He also authorized his executors to lease to her, for a term not exceeding fourteen years, his house in Murray street, at a rent of $800; they, and not the lessee, paying all taxes, assessments, insurance and repairs. The lease, however, was to be “ on the condition that she should occupy the premises for her residence.”

The testator died in 1850, leaving a widow and five infant children; all of whom still continue to reside in the house before mentioned. But great changes are now taking place in that quarter of the city; and among them is the demolition of the house adjoining the widow’s dwelling, and an excavation below its foundation. What, then, is to be done in this unforeseen change of circumstances ? The lot, while unsalable on the one hand, for a residence, has, on the other, become far more valuable for business. Must the family, it is asked, on pain of forfeiture, still continue to reside there ? Is there no escape from such a gratuitous loss and inconvenience, injurious to all and beneficial to none ?

[8]*8In the third-clause of his will, the testator;-1 find, has authorized his executors, not only to make repairs on his real estate, (not excepting the Murray street property,) but alterations and “ improvements to the buildings,” as they may consider most for the benefit of those interested therein, extending even to the “ removal of existing buildings, and the erection of other buildings of such form and construction as they (the executors) may think most expedient.”

Under this provision, the executors,- it seems to me, with the consent of the widow, are clearly empowered to tear down the dwelling referred to, and erect in its stead, out of any “ personal estate ” of the testator, a store or other structure corresponding with the altered condition of things, and to pay to the widow, as part of the expense of making the change, a fair equivalent for the value of her leasehold interest. Such equivalent to consist either of a sum in gross, or, which would, perhaps, be more consistent with the general spirit of the will, of a stipulation to pay her from time to time, without the power of anticipation, so much of the increased rents as shall remain after deducting the interest and taxes on the cost of the new building, and a ratable portion of the insurance, besides the eight hundred dollars per annum with which she is now chargeable.

An order in accordance with the above may be drawn and submitted to the court.

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Roosevelt, Justice.

The late Hubert Van Wagenen, by his will, which was made in 1847, in addition to an allowance for the support of the children, gave his widow an income for her life, of two thousand dollars per annum. He also authorized his executors to lease to her, for a term not exceeding fourteen years, his house in Murray street, at a rent of $800; they, and not the lessee, paying all taxes, assessments, insurance and repairs. The lease, however, was to be “ on the condition that she should occupy the premises for her residence.”

The testator died in 1850, leaving a widow and five infant children; all of whom still continue to reside in the house before mentioned. But great changes are now taking place in that quarter of the city; and among them is the demolition of the house adjoining the widow’s dwelling, and an excavation below its foundation. What, then, is to be done in this unforeseen change of circumstances ? The lot, while unsalable on the one hand, for a residence, has, on the other, become far more valuable for business. Must the family, it is asked, on pain of forfeiture, still continue to reside there ? Is there no escape from such a gratuitous loss and inconvenience, injurious to all and beneficial to none ?

[8]*8In the third-clause of his will, the testator;-1 find, has authorized his executors, not only to make repairs on his real estate, (not excepting the Murray street property,) but alterations and “ improvements to the buildings,” as they may consider most for the benefit of those interested therein, extending even to the “ removal of existing buildings, and the erection of other buildings of such form and construction as they (the executors) may think most expedient.”

Under this provision, the executors,- it seems to me, with the consent of the widow, are clearly empowered to tear down the dwelling referred to, and erect in its stead, out of any “ personal estate ” of the testator, a store or other structure corresponding with the altered condition of things, and to pay to the widow, as part of the expense of making the change, a fair equivalent for the value of her leasehold interest. Such equivalent to consist either of a sum in gross, or, which would, perhaps, be more consistent with the general spirit of the will, of a stipulation to pay her from time to time, without the power of anticipation, so much of the increased rents as shall remain after deducting the interest and taxes on the cost of the new building, and a ratable portion of the insurance, besides the eight hundred dollars per annum with which she is now chargeable.

An order in accordance with the above may be drawn and submitted to the court.

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Bluebook (online)

16 How. Pr. 6, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-van-wagenen-nysupct-1858.