Duncans in Essex Co. NJ Court Records

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Duncan research files of
Mary Ann (Duncan) Dobson
the Genealogy Bug

Last revised January 18, 2007

ESSEX CO. NJ
COURT RECORDS
 

"Reports of cases argued and determined in the Court of Chancery, the Prerogative Court and on appeal in the Court of Errors and Appeals of the State of New Jersey" by Charles Ewing Green, Vol.II; New Jersey Equity Reports, Vol.17, pgs.176 to 180 (California State Law Library, Sacramento, 2/2004)
      JOSEPH N. TUTTLE, trustee, vs. CATHARINE HOWELL and others; Court of Chancery of New Jersey; 17 N.J. Eq. 176; October, 1864, Decided.
      [opinion] THE CHANCELLOR. The bill is filed to settle the construction of the will of David Doremus, in order to ascertain the shares of the estate to which the legatees are respectively entitled, and to guide the trustee in the discharge of his duty.
      By his will, the testator gave the residue of his estate, real and personal, in trust to receive the rents and income thereof, and to pay over the net interest and income "in three and one-eighths parts, to wit, one-third part to my daughter Catharine Howell, one-third part to my daughter Sally Brogaw, and one-third and one-eighth parts to my daughter Maria Duncan." The point in controversy is whether Maria Duncan takes one eighth of the estate, or only one-eighth of a share, more than the other legatees. The language will not admit of a literal interpretation, and will bear, without doing violence to the phraseology employed, either of the constructions contended for. Taken however in connection with other clauses of the will, the intention of the testator is sufficiently clear.
      If the testator had intended that his daughter Maria should have taken only one-eighth of a share more than her sisters, the idea would have been naturally and simply expressed by directing that the money should be paid to his three daughters in such proportions that the share of Maria should be one eighth larger than the share of either of her sisters, or that her portion should be a share and an eighth of a share. But the testator employs no such phraseology. His direction is to pay over the money "in three and one-eighth parts." In other words, in three parts and one-eighth part; or in four parts, one of which shall be one eighth of the estate, and the other three parts shall be equal to each other. For he adds, "to wit, one third part to my daughter Catharine Howell, one third part to my daughter Sally Brogaw, and one third and one eighth parts to my daughter Maria Duncan." Now he cannot mean one third part of the entire estate, for that would be palpably absurd. He must mean one third part of the residue, or one of the three equal parts into which the fund is to be divided after deducting the one eighth. The change of phraseology in the two clauses is worthy of notice. He does not, and could not speak of dividing his estate into three thirds and one-eighth. He directs it to be divided into three parts, and one-eighth part, and then directs one of the thirds, or one of the three equal parts, and the one-eighth to be paid to Maria Duncan.
      This view of the testator's meaning is confirmed by the language subsequently used in reference to the division of the principal of the fund. He directs that the "principal shall be calculated upon the same basis as the interest is herein calculated, that is one third to each of my daughters, except my daughter Maria Duncan, whose share shall be one third and one-eighth of principal as well as interest. Maria's share is to be, not one third and one eighth of a third, but the third and one-eighth of principal as well as interest. The very ingenious argument of the defendant's counsel, in regard to the first clause of the will, rests upon the principle that the fractional number always represents the fraction of a unit, or of one integral number, and that the arithmetical formula, 3 1/8 parts, technically and necessarily means three parts and the 1/8 of one part. Conceding the force of the argument, it has no application to the clause now under consideration. For admitting that 3 1/8 dollars does mean three dollars and the 1/8 of one dollar, it will not be contended that 1/3 and 1/8 of a dollar mean 1/3 and the 1/8 of one third of a dollar. Both the numbers used are fractional, and they indicate fractions or parts of the principal and of the interest of the estate. The bequest is of one-third and of one-eighth of the principal as well as of the interest of the estate; that is, as above stated, one-eighth of the entire fund and one-third, or one of the three equal parts into which the fund is ordered to be divided after deducting the one-eighth.
      The testator further directs as follows: "And upon no construction of this clause in my will shall the children of one deceased daughter have more than the children of another, except the children of my daughter Maria Duncan, who shall take the one-eighth more, in manner aforesaid" The direction is not simply that the children of Maria Duncan shall take one-eighth more than the children of the other sisters, which would have been obviously proper if that was the intention, but the direction is that they shall take the one-eighth more in manner aforesaid; thus directly referring to the plan of division previously indicated.
      From these various provisions of the will it is apparent, that in directing that the fund should be divided into three and one-eighth parts, the testator intended that the fund should be divided into four fractional parts of which the entire fund should be the integer or unit, and that each of the parts should be a fraction of that unit, and not the fraction of a fraction. One of these fractions is declared to be one-eighth. The others are to be ascertained by dividing the residue into three equal parts. The result formally expressed will be, that the estate must be divided into twenty-fourths. That the one-eighth will be represented by 3/24's, and the other three parts by 7/24's each, and that consequently the shares of Catharine Howell and Sally Brogaw will be 7/24's each, and the share of Maria Duncan 10/24's.
      It is urged as an argument against this construction, that a testator will not be presumed to have intended to make any greater difference between his children in the distribution of his property, than his language clearly and necessarily indicates. That the law gives the estate to the children equally, and that such equality will not be disturbed, except such intent is clearly expressed or necessarily implied, and this in analogy to the familiar maxim that the heir-at-law can only be disinherited by express devise or necessary implication. The analogy relied upon is sufficiently obvious where it is doubtful whether the testator has bequeathed a portion of his personal estate, or has died intestate in regard to it. The title of the heir-at-law will not be divested, except the intent be clear.
      But it is perfectly clear in this case that the testator did not intend to die intestate as to any portion of his estate. Neither of his children can take anything by operation of law, as next of kin. They must take by gift from the testator, unless the bequest fail from uncertainty. It is equally clear that the testator intended that the shares of his children should be unequal. The degree of inequality is the only point of inquiry. It is a pure question of construction and cannot be materially affected by the operation of the principle contended for. The utmost that can be claimed for the principle is that it should be resorted to where every other rule of construction fails. In the present case there is no room for its application.
 

"Reports of cases argued and determined in the Court of Chancery, the Prerogative Court and on appeal in the Court of Errors and Appeals of the State of New Jersey" by Charles Ewing Green, Vol.II; New Jersey Equity Reports, Vol.17, pgs.540 to 547 (California State Law Library, Sacramento, 2/2004)
      CATHARINE HOWELL and others, appellants, and JOSEPH N. TUTTLE, trustee, respondent; Court of Errors and Appeals of New Jersey; 17 N.J. Eq. 540; June, 1866, Decided.
      The opinion of the Chancellor is reported ante, p. 176.
      The opinion of the court was delivered by BEDLE, J. The bill in this case was filed by the trustee, to ascertain the shares of principal and income, of certain legatees under the will of David Doremus, deceased. The testator bequeathed and devised to the complainant and William A. Myer, as trustees, (the said Myer having deceased, leaving the complainant the sole trustee,) the residue of his personal and real estate, to receive the rents, issues, and profits of his real estate, and the interest and income of his personal estate, and in trust further, as follows: "To pay over all the interest and income, rents, issues, and profits arising from my said estate, after deducting all legal charges on the same, in three and one eighth, parts, to wit: one-third part to my daughter, Catharine Howell; one-third part to my daughter, Sally Brogaw; and one-third and one-eighth parts to my daughter, Maria Duncan." The question arising upon this language, is as to the shares of each of the three daughters. In determining it, we must look for the intention of the testator, as gathered from these words, or taken in connection with other parts of the will. The appellants contend that Maria Duncan should not receive, as is claimed by her, one-eighth more of the whole than either of the other two daughters, but that the estate should be divided into three parts, in such way as that two of them will be equal to each other, and the other part exceed either of the two parts by one-eighth, the result of which would be eight twenty-fifths to Catharine Howell and Sally Brogaw, each, and nine twenty-fifths to Maria Duncan, making her share exceed either of the shares of her two sisters, by one-eighth thereof, or one twenty-fifth of the whole.
      This construction, I think, cannot be sustained. The simple and natural construction is, that the testator intended that Maria should have one-eighth more of the whole estate than either of her sisters, and that although there were but three legatees, yet, as a mode of ascertaining their shares, and to give Maria the one-eighth more of the whole than the others, he intended that it should be divided into four parts, one of which parts should be one-eighth of the whole, and the other parts each one-third of the remainder, after deducting the one-eighth. He first divides the estate into three and one-eighth parts; that is, into three parts and one-eighth part, not into thirds of the whole, and one-eighth of the whole, as that would be impossible, but into such proportions as that there will be three parts and one-eighth part. The one-eighth part is particularly designated as one of the parts, and the other three parts are to be ascertained by dividing the residue, after deducting the one-eighth, into three parts. This division was merely intended to carry out the object of giving Maria one-eighth more of the whole, than either of the others. Taking, then, the estate as so divided into the four parts, viz. one-eighth of the whole, and the residue into three parts, the testator bequeathed the one-third part to Catharine and Sally each, using the term one-third part, to designate one of the parts into which the estate was divided, and not the one-third part of the whole estate; and after bequeathing one-third so designated, to each of the daughters, Catharine and Sally, there remained two other of the designated parts, viz. the one-third, and one eighth parts, which he bequeathed to his daughter, Maria. It appears to me that this was a very easy and practical mode of ascertaining the shares of each, based upon the intention of allowing Maria to have one-eighth more of the whole estate, than the other two legatees. In another part of the same item of the will, wherein the testator directs his trustee, at the death of either of the daughters, leaving children, to pay over to such children the principal on which the parent received interest and income, he uses this language: "calculating the principal on the same basis as the interest is herein calculated, that is, one-third to each of my daughters, except my daughter Maria Duncan, whose share is to be one-third and one-eighth of principal as well as interest." The one eighth is here used as a fractional part of the whole principal as well as interest, and the one-third as one of the designated parts, after deducting the one-eighth. This construction does no violence to the language. The view suggested by the appellants, would necessitate the insertion of words to show that the testator intended to refer the one-eighth to the other shares of Catharine and Sally, and to make it only the one-eighth more than either of them, instead of the entire principal and interest. I think, with the Chancellor, that if he had so intended, it would have been so expressed. Giving the will this construction, the share of Maria Duncan of the income, interest, rents, issues, and profits, would have been ten twenty-fourths, and the shares of Catharine Howell and Sally Brogaw, each, seven twenty-fourths, and at the decease of each, leaving children, the principal of the estate, to which the children would be entitled, should be ascertained in the same proportions. So far, then, as these matters are concerned, the decree of the Chancellor should be affirmed.
      But the decree proceeds further, and directs, "that upon the decease of the said Catharine Howell, without leaving lawful issue, if it shall happen in the lifetime of the said Sally Brogaw and Maria Duncan, the income arising from the share of the said Catharine Howell, shall be divided between the said Sally and Maria, in the proportions above mentioned, and at their decease, or in case the said Catharine survives the said Sally and Maria, at her decease, the remaining seven twenty fourths of said trust estate shall be divided in like manner, between the children of the said Maria Duncan and Sally Brogaw." Catharine is a widow, without children; Maria and Sally each leave several, all of whom are parties in this cause. This part of the decree was made to cover the contingency of Catharine dying without issue. Should it be otherwise, of course, any decree made with reference to that contingency could have no effect. There is nothing in the opinion of the Chancellor referring to the disposition of the share of Catharine at her death, without children, and the decree was probably signed without the attention of the Chancellor being directly called to that part of it now in question. The decree upon this matter has reference to the share of Catharine, to wit, the seven twenty-fourths, and directs the income from it to be divided between Sally and Maria, "in the proportions above mentioned," the effect of which would be to divide the income of that share between Maria Duncan, and Sally Brogaw, in the proportion of one-eighth more of it to Maria than to Sally. The operation of the decree, at the death of Catharine leaving no issue, and with her two sisters surviving, would be as follows: Maria would get ten twenty-fourths of the whole income, being her original proportion; Sally would get seven twenty-fourths, her original proportion; and of the remaining seven twenty-fourths, being the share of Catharine, each would take in the proportion of the first division, which would give Maria the one-eighth more of it, than her sister. Instead of Maria, then, receiving only one-eighth more of the whole income than an equal share, she would have that one-eighth of the whole, and also the one-eighth of Catharine's share. The same effect would also be produced, according to the decree, in the division of the principal between the children of Maria and Sally, after the death of Catharine, without issue. I do not think that the testator so intended. He meant to discriminate in favor of his daughter, Maria, and her children, to the extent of one-eighth more of the whole income and principal than the others, but not beyond it. At the death of either daughter, leaving no child or children, the testator directs that the share of such daughter shall sink into, and constitute a part of his estate in the hands of his trustees. Her share would then lose its distinctive character, and become a part of the residue of the estate, and the division then to be made, is not of the income of the share of such deceased daughter, without children, but of the whole residue of the estate. The leading idea of the testator, in that part of the will referring to this matter, appears to be, that the share of the daughter dying without lawful issue, should then be merged into his whole estate, and that no division should then be made of the income of that, as a share by itself, but that being so merged, the interest and income of the whole estate should be divided. The language is as follows: "And in trust, that upon the death of either of my said daughters, leaving no child or children, to pay the interest and income, rents, issues, and profits arising from my estate, in the proportions aforesaid, to my surviving daughters and daughter, it being my intention, that on the death of any daughter, leaving no child or children, the share of such daughter shall sink into, and constitute a part of my estate in the hands of my said trustees, and the interest and income arising therefrom, to be divided among my surviving daughters and daughter, in manner aforesaid." This language can scarcely admit of any other construction than as already given. The error of the decree is in dividing the share of Catharine as a distinct share, instead of treating it as a part of the residue of the estate, and then dividing the whole income and principal according to the proportions named in the will.
      What, then, are the proportions into which the whole income should be divided at the death of any daughter, leaving no children? The will says, "in the proportions aforesaid." The proportions of the shares of each daughter were equal, except that the share of Maria was not only as much as her sisters, each, but one-eighth more of the whole. Maria was to have one-eighth more of the whole, than either of her sisters. Those were the proportions of the three to each other. The proportions of Catharine and Sally were equal. The practical operation of the words, "in the proportions aforesaid," would be as follows: If Maria should die without leaving any children or their issue, but leaving Catharine and Sally surviving her, the share of Maria would sink into the estate, and the whole income would be divided between Sally and Catharine equally, because their proportions are equal. If Catharine should die without any children or their issue, leaving Maria and Sally surviving, her share would sink into the estate, and the whole income would then be divided between them in the proportion of the one-eighth more of the whole to Maria than to Sally, because the proportion referred to between them, was one-eighth more of the whole to Maria than to Sally. In the event, then, of Catharine dying without leaving lawful issue, if it shall happen in the lifetime of Maria and Sally, as contemplated in the decree, the share of Catharine will become, or remain a part of the estate in the hands of the trustees, and Maria will be entitled to one-eighth more of the whole income than Sally, or the same result would follow by allowing Maria to take out of the whole income her original ten twenty-fourths, and Sally to take her original seven twenty-fourths, and then dividing the remaining seven twenty-fourths equally between the two. By this course, Maria would get one eighth more of the whole than Sally, and not that one eighth and the one-eighth of Catharine's share, additional. This mode of dividing the income will also control in the division of the principal of the share of the daughter, dying without children. At the death of the parent, her children, if any, are entitled to the principal upon which the parent had received interest and income, and as stated in the will, "upon no construction of this clause in my will, shall the children of one deceased daughter have more than the children of another, except the children of my daughter, Maria Duncan, who shall have the one-eighth more, in manner aforesaid. " In the event of Catharine dying without issue, as provided for in the decree, leaving her two sisters surviving, the principal of her share would then be a part of the residue, and such residue of principal should be divided between the children of Maria and Sally, upon their death, so that the children of Maria would have the one-eighth more of the whole, than the children of Sally; the children of Maria would take just one eighth more than the children of Sally, of the residue of principal. The same result would follow as in the division of the income, by allowing the children of Maria, at her death, to take the original ten twenty-fourths of the whole of their parent, and the children of Sally, at her death, to take the original seven twenty-fourths of the principal of their mother; and then dividing the remaining seven twenty-fourths of Catharine, equally between the children of the two, the children of each to take only among them, the share represented in the parent. By this mode, the children of Maria would get only one eighth more than the children of Sally. If Catharine survives her two sisters, then, at her death, the division of her share, it then being the only part of the residue remaining, if Maria and Sally leave children, such share would then be divided between their children equally, for, at the death of Maria and Sally, their children would then have received or been entitled to the shares of their parents, respectively. And the share of the children of Maria, being ten twenty-fourths of the whole, would include the one-eighth of the whole more, which the testator intended they should have. The result of these conclusions is, that the whole decree must be affirmed, except that part of it which provides for the disposition of the income and principal of the share of Catharine, in the event of her dying without leaving lawful issue, and as to that, the same must be reversed.
      The decree of the Chancellor, except in the particular specified, was in all things affirmed; eleven of the judges concurring; not voting, three.
 

"Reports of cases decided in the Court of Chancery, the Prerogative Court and on appeal in the Court of Errors and Appeals of the State of New Jersey" by John H. Stewart, Vol.III; (spine title: New Jersey Equity Reports - 43 - XVI - Stewart); "New Jersey Equity Reports", Vol.43, pgs.143 to 146 (California State Law Library, Sacramento, 3/2004)
      HENRY B. DUNCAN, appellant, v. THE INHABITANTS OF THE TOWNSHIP OF FRANKLIN, IN THE COUNTY OF ESSEX, respondents; Prerogative Court, New Jersey; 43 N.J. Eq. 143; 10 A. 546; May, 1887, Decided.
      On appeal from order of Essex county orphans court.
      [opinion] THE ORDINARY. Jane D. Poineer, by her will, dated September 27th, 1875, and duly proved, by the executors named in it, before the surrogate of Essex county, on April 6th, 1882, after providing for the payment of her debts and funeral expenses, appointed the appellant, Henry B. Duncan, and one Hiram Van Winkle, executors of the will, and bequeathed several legacies, and among them one to the said Henry B. Duncan, in the following language:
      "Eighth -- I give and bequeath to Henry Benson Duncan, for his services in assisting me at different times, the sum of two thousand dollars."
      It appeared by the executor's account, filed with the surrogate on July 20th, 1886, that the estate was insufficient to pay all the legacies in full, and also that the executors asked allowance for the payment of the legacy to Henry Benson Duncan by an item of discharge, as follows: "Paid Henry B. Duncan legacy under the will, for services rendered deceased in her lifetime, as stated in the will, $2,000."
      To this item an exception was filed. The executors did not offer proof that services had been in fact rendered by Mr. Duncan to the testatrix for which an obligation to pay existed at her death, but relied entirely upon the will to justify their payment. The exception was sustained by the order of the orphans court, and from that order this appeal is taken.
      The established rule is that, where general legatees are volunteers, taking of the testator's bounty, and there is nothing in the will to indicate that one shall be paid before another, their legacies must abate proportionately, in case of a deficiency of assets; but where a general legacy is sustained by a valuable consideration, such as the relinquishment of a debt or of a claim of dower, and the right to the claim constituting the consideration subsists at the testator's death, the legatee is entitled to the full payment of his legacy in preference to other general legatees who take merely of the testator's bounty.
      The burden of proving that a general legacy is entitled to priority is upon him who asserts it, and the proof must be clear, conclusive and unequivocal.
      There is nothing in this bequest to Mr. Duncan or in the will to indicate that the testatrix intended that this bequest should be paid before the other legacies.
      The expression "for his services in assisting me at different times," does not, standing alone, import an indebtedness from her to the legatee for which payment may be exacted by process of law. For aught that appears to the contrary, the services may have been rendered gratuitously and the legacy may have been given in grateful recognition of them. That the legacy was given because of a sense of moral obligation, or as compensation for services or other favors rendered as a mere voluntary courtesy, will not, if no legal obligation to pay exist at the death of the testatrix, constitute such a valuable consideration as to entitle the legacy to priority in payment.
      More than six years elapsed between the making of the will and the death of the testatrix, yet no evidence was offered to show that if a legal indebtedness to Mr. Duncan existed at the making of the will its payment was enforceable when the testatrix died. The burden of proof, which was upon the executors, was not discharged by the simple production of the will. As the case is presented no error in the order is shown. The order will therefore be affirmed, with costs.
 

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