Anthony v. Brouwer

The surrogate’s decree of the 1st of July, 1858, makes an absolute disposition of all the estate of James Gill, deceased, except the principal of the fund *136directed to be retained and invested by the executor for the benefit of Sarah Wilhehnina Anthony during her natural life. That fund was to abide the further order of the court, and was invested under the third provision of the will of said deceased, to produce the annuity given to Mrs. Anthony, and if Thomas Gill, the brother of the testator, had survived him he would have been entled to the whole of the principal, to the exclusion of all the other brothers and relations of the testator, but as he died before the testator and no other disposition was made thereof by the will, it lapsed and became distributable among the testator’s next, of kin, under the statute of distributions, as in cases of intestacy as a vested estate. The payment thereof was. however postponed till the death of Mrs. Anthony, who, as before stated, was to receive the income of the whole during, her natural life. She as one of the sisters of the testator was entitled to one third of the fund, and upon her death it passed under her will. The surrogate’s further decree of 19th November, 1864, directing one half of the entire fund, after payment of certain expenses, to be paid to Theophilus Gill, and the other half to the children of Thomas Gill, was therefore erroneous.

There is, in our opinion, no ground for the claim of the children of Thomas Gill to the whole of that fund. The testator evidently made the bequest thereof under his will, to his brother Thomas in the expectation that his brother, would have survived him, and he made no provision for the event that has occurred. There is no reference in that bequest to the heirs or children of Thomas, nor is there any indication whatever that they should take what was intended for their father.

The provision for the exclusion of the other brothers and relations of the testator from participation in the fund was clearly based on the assumption that Thomas would have survived the testator, and taken it himself, and became inapplicable and inoperative when the intended dispostion of it failed.

These views lead us to the conclusion that the surrogate’s *137decree of November 19th, 1864, must be modified, so as to direct one-third of the fund in question to be paid to Tlieophilus Anthony, the executor of the will of Mrs. Anthony,' one-third to Theophilus A. Gill, and the balance to the children of Thomas Gill in equál shares, after first payingthereout the costs of the said executor, and of JacobBrouwer the executor, &c., of James Gill deceased.

The children of Thomas Gill have also appealed from the-decree of 1st of July, 1858. It appears that on the 9th of the same month they received the distributive shares payable to them under it, and gave receipts in full therefor to-the executor, they acquiesed in its provisions and did not appeal therefrom until the subsequent decree of 19th. November, 1864, was made. This appeal was too late.' It-could not be taken after three months from its entry (See 2 R. S. p. 609, §§ 105-107).

That appeal must therefore be dismissed with costs.