McEwing v. Bertine

3 Bradf. 194

• Court: New York Surrogate's Court
• Decided: April 15, 1855
• Status: Published

Opinion

The Surrogate.

The testator was engaged in business as a manufacturer at Paterson, Hew Jersey, where he owned a cotton mill. After devising to his wife a life estate in certain property in this city, he disposed of the residue of his estate as follows: “ After all my just debts and funeral expenses are paid, I leave and bequeath to my children the remainder of my property, namely—my cotton mill in Paterson, Hew Jersey, known by the name of Harmony Mill, together with my leasehold property in Bedford Street and Barrow Street, to wit., Nos. 94, 96, and 98, in Bedford Street, and 134, 136, 138 and 140, in Barrow Street,—all this property to be sold, and whatever money and effects be on hand at the time of my death included, all to be divided in seven equal shares, of which my son Duncan McEwing is to have one share, my daughter Lydia McEwing one share, my son John McEwing one share, my daughter Janet McEwing one share, my daughter Caroline McEwing two shares, and my son Henry Clay McEwing one share—the three last named to have the same advantages of education as the three former have had—Harmony Mill, at Paterson, Hew Jersey, after my decease, to be under the direction of my son Duncan McEwing and John Danskin, the profits of which to be appropriated to the use of my family. The several divisions can take place after my decease, when my sons arrive severally at the age of twenty-one, and my daughters when they arrive at the same age or get married.”

The testator died in the year 1848, and his son Duncan died in July, 1850. The cotton-mill has been kept running until the present period. Lydia, John, and Janet have attained majority since their father’s decease. Caroline and Henry still remain under age, and one of the daughters has married.

The devise of the residue of the testator’s estate vested in his sons and daughters on his decease, subject in the first place to the proviso for the education of the three children last named, and in the second place, to the direction respecting the management of the mill. Those children were to be educated at the charge of the estate, and then the profits of the factory enured to the benefit of the family. In view of the provision made for the widow, I understand the testator, by the term family, to have intended his children (1 Roper, p. 138), to whom the property had been previously given." The question then arises, how long the property is to remain undivided. The devise being absolute and vested, the parties in interest would be entitled to an immediate division, except for the clause as to the management of the factory. Although by its terms the profits of the business are appropriated to the use of the family, yet the shares of the children are not varied, and I take this provision simply as a direction how that portion of his estate was to be managed by certain persons for the benefit of the devisees until a distribution should be made. That distribution the testator himself expressly provides for, and his language very clearly shows that as his children should attain full age, or in the case of his daughters should marry, each one should take out his or her share. These distributions he terms “ the several divisions.” The contingency on which the divisions are directed by the will having happened as to three of the children, the business must be closed up, and the parties entitled, be paid their shares of the estate.