As the case now stands, the former decree is evidence of such right; and it settles the question, as against the execu tors, in respect to what. passed by the will, also what they were liable to account for to Mary Matthews and Bridget O'Brien, as residuary legatees, and the share and interest of Bridget as well as of Mary in the estate since she now claims upon the same grounds and under a similar construction of the will which was then set up and admitted to be correct. A different decree now upon these points would be inconsistent with the former and, therefore, cannot be made. The master's report in the present case to which exceptions are taken is in conformity with the principles contained in the former decree; and for the reasons already given, I should think the defendant is not at liberty to controvert it. But viewing the questions presented by the exceptions upon their own merits, independently of the former decree, and I am satisfied the master has decided correctly so far as I shall now undertake to examine his report. The first exception to it is, that as to certain portions of the personal estate, to wit, the stock of public incorporated companies and plate, there was an intestacy-no person being entitled to them under the will, and, consequently, the execu tors became possessed thereof in trust for the next of kin. Among some of the stock (some of which the executors disposed of and accounted for in the suit of Mary Matthews) the testator owned one hundred shares in the capital stock of the Mechanics' Bank, and of which the executors at that time were ignorant; but having since discovered it, Mr. Heeney, as surviving executor, has received the dividends which had been accumulating for many years-amounting to upwards. of three thousand dollars. These shares the testator subscribed for on the incorporation of the bank in the year one thousand eight hundred and ten and after he had made his will. But the objection is, not that the stock did not pass by the will on account of its being subsequently acquired property-such an objection cannot be taken in regard to personalty. A will speaks from the time of the testator's decease; and whatever property of a personal nature he then owns passes under it: provided words are used suf 1834. O'BRIEN. V. HEENEY. 1834. O'BRIEN v. HEENEY. ficiently comprehensive to include all within the bequests or the context of the will shows that the testator intended to dispose of the whole of his personal estate and not to die intestate as to any part. It is true, in disposing of the residuary personal estate, that there is no direct devise or bequest of plate or bank stock or of money invested in stocks or funds of any kind and. probably for the reason that at the time the will was written the testator held no property of this description other than what he specifically bequeathed. But, taking the whole of the will together and it is evident, from the manner in which the property is disposed of and the way in which it is to be divided, after satisfying the specific bequests and the pecuniary legacies, that the testator did not intend to leave any thing undisposed of by his will; and the court is warranted in adopting the construction which the executors, acting under the advice of their counsel on the former occasion certainly adopted, that the whole of the testator's personal property passed to them or to the legatees pursuant to and under the authority of the will and that they took no part of the property in trust for the next of kin. I am in favor of overruling the first exception. The second and third exceptions are intended to present the question, whether the children of Bridget O'Brien and those of Mary Matthews are not tenants in common with their respective parents in the rents and profits of the house and lot No. 323. Pearl Street since the death of Matthew Reed the son and to whom it was devised for life. The testator says, in the event (and it has happened) of the son's death without issue to take the remainder, "then the rents of said house to go to my two sisters in Ireland, viz. Bridget O'Brien and Mary Matthews or to their children, that is to say, one-third to my said sister Mary or to her said children, and two-thirds to my said sister Bridget or to her children." In order to make the chidren take at the same time with the parent under this devise, the word "or" must be read and for, as the will is worded, it indicates that the children are to take substitutionally and not simultaneously with them; and in order to give the devise the latter meaning, the phrase must be changed from the disjunctive to the conjunctive. This is sometimes done where the whole sentence in a will would be otherwise uncertain or unintelligible and it is evident or is used for and, and vice versa through mistake; and upon the principle of correcting the mistake and of effectuating the intention and giving validity to the bequest, the court interposes to change the word: still, unless it is clearly authorized by the intention and meaning of the testator, as collected from the whole will, no alteration will be made: 2 Roper on Leg. 290. In the case of the will under consideration, I am satisfied no alteration or change is called for. As the words stand, they are susceptible of a fair legal construction and this without adopting the conclusion that the testator meant the children to take during the lifetime of their mothers and in common with them; and there is nothing in the will to show that such was his meaning. Indeed, on the contrary, the obvious intent is that they were not to take at the same time and in common with them. I am of opinion the master has decided correctly when he reports that Bridget O'Brien is entitled to two thirds of the rents and profits of the house No. 323, Pearl Street and that her children are not entitled to participate in the same with her as tenants in common or otherwise under the will. And so with respect to Mary Matthews and her children, in relation to the remaining one third: that during her life her children were not entitled to share with her as tenants in common or otherwise under the will. Upon this basis it is that the accounts of the rents were taken in the former causeexcluding the children from any share or participation with their mothers. The apportionment between them as the persons solely entitled, was decreed. Altho' I have chosen to examine this question, yet I consider the defendant precluded from raising it in the present suit. The second and third exceptions, so far as they go to the point, should be disallowed. But there are other questions which cannot be passed over. Thus, taking those words of the will as we find them: "or to their children" and it becomes a question whether they operate as words of limitation and give to the first takers, Bridget O'Brien and Mary Matthews, estates in fee or mere life estates, with remainders to children either for life or in VOL II. 32 1384. O'BRIEN v. HEENEY. 1834. O'BRIEN V. HEENEY. fee? vide Montagu v. Nucella, 1 Russ. 165. The master considered the will as having converted the real estate into personalty and that the rents and the proceeds of the house and lot when sold under the power and trusts of the will were to be disposed of as personal estate and also that Bridget O'Brien and Mary Matthews became entitled absolutely to their respective shares; and as a consequence of this, upon the death of Mary Matthews, one third of the rents, until the house and lot should be sold and one third of the money to arise from the sale when made, would be at her disposal and pass by the will made in Ireland in favor of some of her children to the exclusion of others of them, and her executors be entitled to receive the one third of the rents and of the avails of the house and lot when sold. It appears, however, that John Matthews, one of her sons, who is excluded by her will, having become a naturalized citizen, has, since the death of his mother, recovered, in an action of ejectment, commenced in the Superior Court of the city of New York, an undivided thirtieth part of the house and lot-claiming title, as I infer, under the will of his uncle Matthew Reed, as one of the devisees in remainder and has been in the possession and receipt of such a proportion of the rents and profits. Here, then, it is obvious that the questions to which I have just adverted cannot be settled by a decree in the present state of this suit. All persons having or claiming any interest should first be made parties: John Matthews, for instance, is a necessary party; while the other children of Mary Matthews and her personal representatives should be brought in before an effectual decree can be made touching the account and disposition of one third of the rents since the death of Mary Matthews and the sale of the house and lot and the division of this portion of the proceeds. With respect to Bridget O'Brien, there would be no difficulty, even at present, in ordering the defendant, as surviving executor, to account to her during her life for two thirds of the rents: but beyond this, no safe decree can be made-for, claims may be set up by some of her children after her death similar to those asserted by John Matthews; and it is, therefore, important to have all proper parties before the court when a decision is had upon the questions now presented and I cannot but think the children of Bridget O'Brien are of the number. 1834. HARRISON บ. The decree in the former cause of Mary Matthews was an imperfect one, for the want of parties- as is manifest from what has since taken place: and to undertake, in the present suit, to determine questions in which persons not be- м'MENNOMY. fore the court are concerned would be another nugatory act. It is surprising that in neither case has the objection been taken by the defendants. Still, where it is perceived, even after a full hearing, that an effectual decree cannot be made, the court may take it upon itself to order the cause to stand over for want of parties: Jones v. Jones, 3 Atk. 111. If the complainant is content to have a decree for an account of two thirds of the personal estate which has come to the hands of the defendant, and not heretofore accounted for, and for two thirds of the rents of the house, No. 323, Pearl Street; (and which, I think she is, at all events, entitled to receive, so long, during her life, as the property remains unsold,) the cause may be sent back to the master simply to take such an account. If more be asked, it must stand over to add parties. WILLIAM H. HARRISON, administrator de bonis non, &c. of Parol evidence is admissible to prove a trust in opposition to an absolute deed or written Money was left by H. with M. under a parol request to put it out at interest and let it accu- An objection of substance by a defendant can be first raised upon a re-hearing, even Feb. 12th, 1834. Mortgage. Bill of foreclosure and sale of mortgaged premises. It Parties. had been filed in the names of Isabella J. Harrison, widow Rehearing. |