Duncan research files of
1790 Columbia Co. NY Census Kinderhook Town Pg. 68 Michael Dunkin 102xx 1800 Columbia Co. NY Census Hudson Pg.1137 Peter Duncan 00020 - 10100 (MAD: page also numbered as 249) Hillsdale Pg.1186 Daniel Duncan 00012 - 00110 Daniel Duncan Jr. 20010 - 10010 Joseph Duncan 21010 - 21010 Samuel Duncan 20010 - 20010 (next to each other) (MAD: page also numbered as 182, 1194, and 89) 1810 Columbia Co. NY Census Hillsdale Pg. 118 Daniel Duncan 00001 - 00001 Joseph Duncan 12110 - 20010 Hudson Pg. 143 Wm. Duncan 00000 - 00000 - 6 Livingston Pg. 223 Thomas Duncan 40120 - 22010 1830 Columbia Co. NY Census Hillsdale Pg. 191 Joseph Duncan 0000,0000,1 - 0 1840 Columbia Co. NY Census Hillsdale Pg. 142 Abraham Duncan 1000,01 - 1100,01
1850 Columbia Co. NY Census
Pg.324, #118, Abraham DUNCAN 49 NY laborer
Catherine 48 NY
Margaret 17, Phoebe A. 12 NY
Pg.341, #365-397, Paulina DISHOW 43 CT
Edward DUNCAN 26 CT
William TEFUIS? 13 CT
Mary E. RICHINSON? 30 NY
Pg.107, #74-79, Anna DUNCAN 73 NY (blank) $700
Pg.107, #74-80, Wm. CLARKE 27 NY laborer
Catharine 22 NY
John E. 1 NY
1860 Columbia Co. NY Census
Town of Hillsdale
Pg.123, #1080-1032, Henry DUNKIN 34 NY farm laborer $0-$275
Marriah (f) 24 NY housekeeper
Hellen 10, Hardy (m) 6 NY
Estell (f) 4, Hattie (f) 3/12 NY
Pg.154, #1342-1283, Albert DUNCAN 35 NY farmer $3000-$725
Carolin (f) 37 NY housekeeper
Mary C. 4 NY
Charles P. PICKETT 25 GERMany farm laborer $0-$0
Abby FINNER? (f) 14 NY
Pg.159, #1378-1319, Abram DUNKINS 60 NY farm laborer $0-$200
Catherine 58 NY housekeeper
Town of Claverack
Pg.550, #1642-1665, Myron DUNKIN (m) 55 VT farm laborer $0-$150
Fidelia (f) 51 VT
Catharine 14 NY
Albert 10 NY
Pg.649, #122-131, John H. REYNOLDS 30 NY shoemaker $0-$400
Maria L. 27 NY
William V.N. 1 NY
Phebe DUNCAN 22 NY domestic
Gates WICKHAM (m) 35 NY journeyman shoemaker $0-$0
Francis M. REYNOLDS (m) 19 NY shoemakers apprentice
1870 Columbia Co. NY Census
Austerlitz, P.O. Ghent, NY
Pg.32, #139-150, SAWYER, Orrin M. 56 NY farmer $5000-$1500
Caroline M?. 47 NY keeping house $0-$1000
Elias D. 25 NY carpenter $0-$200
Debrul?? (m) 19 NY
DUNCAN, Caroline M. 14 NY
SHELBY, Matilda 18 NY domestic servant
Pg.419, #89-101, DUNCAN, Henry 42 NY farmer $5000-$2000
Maria 44 NY keeping house
SHEPARD, Helen 21 NY
DUNCAN, Harding (m) 18 NY farm laborer
Wheaton (m) 16 NY farm laborer
Fidelia (f) 13, Hattie (f) 10, Lizzie (f) 6 NY
SHEPARD, Bertie (m) 1 NY
Pg.419, #91-105, MacDONALD, James M. 45 NY farmer $7000-$2000
DUNCAN, Catharine 67 NY keeping house
BULL, Charles 33 NY (blank)
DUNCAN, Phebe 32 NY
"Reports of cases argued and determined in the supreme court of judicature : and in the Court for the Trial of Impeachments and the Corrections of Errors in the State of New York" by William Johnson; ("Johnson's Reports") Vol.4, pgs.202 to 213 (California State Law Library, Sacramento, 1/2004)
JACKSON, ex dem. DUNCAN et al., v. HARDER; Supreme Court of Judicature of New York; 4 Johns. 202; May, 1809, Decided.
This was an action of ejectment for lands in the city of Hudson. The cause was tried at the Columbia Circuit, before Mr. Justice Van Ness, in October, 1807.
At the trial, William Coventry, a witness for the plaintiff, testified that he was 48 years of age, and lived upon the Salisbury patent; that his father came there in 1760; and John M'Comb was in possession of lands south of him. Wynant Mantle was the first possessor under M'Comb, and was there 40 years ago, and remained in possession until after Duncan and Campbell, two of the lessors, came into possession, when he became their tenant. After he went away, William Cochran came into possession under Duncan and Campbell, and remained there several years. Alexander Patterson took possession afterwards under Duncan and Campbell. Jacob Elias came on the premises in 1779, under Duncan and Campbell, by lease for a year, and continued thereon until his death; and his family still live there. In 1776 the father of the witness and M'Comb divided the north part of the patent, down to a certain white ash tree, and then running east to the east bounds of the patent. The north part was held by his father, and is now held by the witness. The south part fell to M'Comb, about the year 1779 or 1780. After Jacob Elias was upon the premises, Samuel Howe and Jonathan Baker came in possession; Elias, Howe, and Baker had possession, and built houses upon the tract, claiming title, and saying they had purchased of Duncan and Campbell. Baker built on the southeast part of the tract claimed by D. and C. and near the place called Stoney Dock. Elias built on the northeast part of the tract, where his family now are, and at the place where Mantle, Coch ran, and Patterson formerly resided. Samuel Howe built near the east line of the tract where Jonathan Fish afterwards lived, upon a farm now owned and possessed by the defendant, but not the premises now in dispute. The witness was present when Baker, Howe, and Elias agreed upon a division of the land bought of Duncan and Campbell, and the plan was marked out upon the barn. A survey was afterwards made agreeable thereto. The parties, afterwards, possessed, and built, in severalty, according to that division, which took place in the spring of 1783. Upon that division, there was a small piece of about two acres at the northeast corner of Baker's former possession, which fell to Howe, and has always been held with the portion allotted to Howe. Baker went away, about the year 1787 or 1788, and one Rundles succeeded to the possession, and after him the defendant. The witness pointed out, on a diagram, the manner of the division between Howe, Elias, and Baker, by which it appeared that Elias took one half of Duncan and Campbell's tract, and one third of the remaining half. That Elias took his half upon the north, and his third of the remaining half upon the southeast corner. Howe took his part, lying upon the east, and bounded upon the north and south sides by Elias, and extending about half the distance from the east side to the river. Baker took his share at the southwest corner. The witness, on his cross-examination, said that Casper Salisbury, as far back as he could remember, lived within the tract claimed by Duncan and C., and held under the Salisbury claim and against them; his old farm extended as far as Stoney Dock, and the lands lying south of the line, which runs east from Stoney Dock, were possessed under the Salisbury claim. One Delamatter held east of Casper Salisbury, and the widow Moore east of, him. That Duncan and Campbell, or M'Comb, never had any lands in possession south of the east line from Stone Dock.
Alexander Patterson, another witness for the plaintiff, testified that he had lived on the M'Comb tract. That he went on under Duncan and Campbell, in 1775. Wynant Mantle lived there under M'Comb, in 1764. Elias succeeded the witness in the possession. A son of Casper Salisbury had a field south of him, and Casper Salisbury had a field still farther south, which the witness afterwards held under William Ludlow. This was in 1774, and the witness then lived with his father-in-law. In 1763, 1764, or 1765, he had some grain' on a field which afterwards came into the possession of Baker. The fence was gone and the land then vacant. Cochran was in possession before he came on, and Cochran held under Duncan. The son of Casper Salisbury held some land for one year under Cochran. The land held by Casper Salisbury was meadow land, and the witness, afterwards, occupied it under Ludlow. When Salisbury moved away, the land was turned into common, and Ludlow got a judgment against the possession, which he sold at auction, and bid off himself. Ludlow said he would hold the land as long as he could, and offered it to the witness for a pair of horses. The witness continued in possession until the late war, when he left it, and then Ludlow sold the land to Baker. There was some land north of Casper Salisbury's possession, which, on the division between Howe, Elias, and Baker, fell to Baker. Part of Casper Salisbury's possession extended near to Stoney Dock, and he claimed no more than he had inclosed, and Ludlow claimed all that Salisbury had inclosed. Salisbury had all his possession south of the road, and it lay on both sides of the south line of M'Comb's tract. Baker's house and barn were no part of Salisbury's possession. The greater part of Salisbury's possession lay north of M'Comb's south line, as laid out on the diagram.
Samuel Howe, another witness for the plaintiff, was objected to as interested, but was admitted. He testified that M'Comb's and Campbell's tract extended from Coventry's down to an ash tree upon the river. He proved the division between Baker, Elias, and him, as above mentioned. They possessed severally according to the division. Baker and Elias were in possession before the agreement for a division. Baker first lived at the southwest coroner of the tract, and built near the same place, east of Stoney Dock, and north of the road leading to the river. They agreed that each should have an equal share of Duncan's right. In 1783 they chalked out the division, and agreed to have it surveyed, and it was done by David Cully. Elias took Campbell's half, and the residue was equally divided among the three. Each party agreed to hold according to the survey. The witness sold to Jonathan Fish, and the defendant got the land from him, and now holds it as his own. In the survey (the lines of which Baker afterwards retraced and agreed to), the line extended down to the ash tree upon the river, and then east; and that line east from the ash tree was the southern line agreed on by the occupants of Duncan and Campbell's tract. About 60 acres of C. Salisbury's possession were part of the land divided between them, and purchased from Duncan. Baker purchased the possession of Ludlow in 1781. Ludlow told the witness that he did not pretend to anything more than a bare possession; and this was after the agreement with Duncan and Campbell. Ludlow also said that the fee of the land was in Duncan and Campbell.
The testimony relative to Ludlow's confessions about the title was objected to by the counsel for the defendant, but the objection was overruled.
The lot purchased from Ludlow was taken by Baker as part of his share of the tract purchased from Duncan and Campbell. Delamatter's land lay east of Salisbury's, and north of the south line of M'Comb. Elias was, by agreement, to buy in Delamatter's claim, and the witness and Baker were to buy off Ludlow's. On the division of the purchase, it was not considered that Baker had any greater right than the witness and Elias; neither did Baker, on account of the purchase from Ludlow, claim any more land than Elias and the witness. Baker moved away in 1787 or 1788, and he told the witness before he moved that he owed and could not pay Duncan, and that he must quit the land. The defendant is now in possession of this land. The parties agreed to Cully's map and division, and the possessions are now held agreeable to the division of 1783. The witness paid a part of the consideration money to Ludlow, and on the division one and a half or two acres of Salisbury's possession fell to him, and he took possession of it the day after Cully's survey. When Baker bought of Ludlow there was a dispute about the land, and Ludlow said that he had bought Salisbury's possession. One Rakemire lived on Salisbury's possession, when the witness first knew it, as tenant of Ludlow, and some part of that possession then appeared old. Whatever claim Salisbury had, Ludlow pretended to have. Ludlow said that Salisbury's possessions belonged to the Duncan and Campbell tract. Elias died two or three years after the division, but he never got (as the witness knew) the southeast third of the south half, which is possessed by Delamatter'and Whitlock. The witness paid Baker his portion of what he paid Ludlow. Duncan and Campbell each owned half of the tract sold to the witness.
The plaintiff then gave the following evidence of title:
1. A deed from Daniel Campbell to Jacob Elias, for an undivided half of the M'Comb tract, dated 24th April, 1784; this deed recited that the sheriff sold, at auction, a tract of land granted by patent to Van Salisbury and Slytinghurst, containing 1,000 morgan; that John M'Comb possessed and claimed one fourth of the tract; that Duncan and Campbill purchased, at the auction, the share of M'Comb, and took a deed, and the covenants are against the grantor only.
2. A deed from John Duncan to Jacob Elias for one third of one half, dated 11th October, 1785. It is stated that the land so purchased by D. and C. was then possessed in part by Jacob Elias, Samuel Howe, and Jonathan Baker.
3. A like deed from Duncan to Howe, dated 4th October, 1785.
4. A deed from the sheriff of Albany to Duncan and Campbell, dated 11th June, 1770, of all the right of M'Comb in the patent, being one half thereof. This deed was objected to, because there was neither judgment or execution to support it; but the objection was overruled.
The plaintiff then proved the death of John Duncan, and that the lessors were his heirs.
The defendant proved that, of the two patentees, Salisbury survived, and died, leaving Hendrick Salisbury his heir-at-law. He then produced a deed from Hendrick, dated 18th July, 1737, for the lands lying south of an east line from Stoney Dock, to Herman Salisbury, his son, for the consideration of love and affection. He then proved that Casper Salisbury was a son of Herman, and offered to prove that Herman entered about the date of the deed under it, and lived and died on the premises, claiming and possessing to the line running east from Stoney Dock, and that Casper was his heir-at-law, and on his death succeeded to the estate under the same title, and held it under that title, until Ludlow got possession in 1784, under a judgment and execution. This testimony was objected to, and overruled.
A verdict was taken for the plaintiff, by direction of the judge, for one sixth of the premises, with leave to enter judgment for the whole, or any part greater than a sixth, which, in the opinion of the court, the plaintiff should be entitled to recover, on the facts in the case, as above stated.
(opinion) KENT, Ch. J., now delivered the opinion of the court: This case presents an intricate mass of facts and minute circumstances, which it becomes necessary to analyze and digest, with care and patience, before we can discover the just inferences which flow from them.
John M'Comb was in possession of a tract of land in Salisbury and Slytinghurst's patent, adjoining the premises, as early as the year 1764. He continued in possession until the year 1770, when Duncan and Campbell purchased, at auction, of the then sheriff of Albany, the right of M'Comb in the patent, and which was stated in the sheriff's deed to be one half of it. They probably took possession immediately, and peaceably, with the consent of M'Comb, for we find them in possession in 1774, and the former tenant of M'Comb continued in possession under him until they came into possession, and then he became their tenant. In 1776 Coventry and M'Comb made a division of the north part of the patent down to a certain white ash tree, and running east from thence to the east bounds of the patent. Upon this division, the south part fell to M'Comb, and the north part to Coventry, under whom it is still held. This partition must have been made by M'Comb, for and on account of Duncan and Campbell, for they were then in possession, under a title purporting to be derived from M'Comb, and they continued to possess under that division, and thereby ratified the same on their part. This division was so made as to include the premises in question, and to throw the same into the share of the tract which fell to Duncan and Campbell. Before this time, also, Casper Salisbury must have left that part of the premises which he had before held adversely. The precise time when he quitted the premises does not appear; but, according to Patterson's testimony, it must have been before the war, and when he went away the land was turned into common. This division, in 1776, was the first act of actual ownership which appears to have been asserted and exercised by Duncan and Campbell over the premises in dispute, and there is good reason to infer that from that time forward the premises were in their possession. In 1779 or 1780 Baker came on to the tract under Duncan and Campbell, and he went immediately on the southwest corner of the tract where the premises are situated. After he had come into possession under D. and C., he purchased Ludlow's claim to the premises, and which claim was founded on a purchase at the sheriff's sale of Salisbury's possession. Ludlow never pretended any right to the premises, though he admitted that he was possessed of all the claim of Salisbury. He said that the land belonged to the Duncan and Campbell tract, and that the fee was in them, and that he did not pretend to anything more than a mere possession. This he told to Baker, who must have considered his claim as being no better, for he continued to hold his possession under D. and C., and never pretended to any right advese to theirs. The purchase of Ludlow's claim was made in pursuance of an agreement between the three tenants, viz., Elias, Howe and Baker, for their common benefit, and merely to quiet their possession. Baker never pretended that he had acquired any superior right to his co-tenants, and the facts authorize us to conclude that the purchase money was paid equally by all of them. This purchase was made before any partition between the three co-tenants, and while it was understood and agreed that each should have an equal share of Duncan's right. The division made in 1783, between Howe, Elias and Baker, is conclusive evidence of this understanding between the parties, and of the intentions of Baker. That division was avowedly made by them of the lands which they had, or alleged to have, purchased of D. and C., and the survey by Cully, which ran down to the white ash tree, was made by their direction and in pursuance of that division, and possessions were afterwards taken by them accordingly. Baker took the premises as his share upon that division, and he traced on the land the lines of Cully's survey, and agreed to them. Baker continued to occupy this land under the title of D. and C., until the year 1787 or 1788, when he quited the premises, and expressly declared the reason to be that he was not able to pay Duncan for the land, according to his contract.
Upon these facts, I think it results that the plaintiff showed enough, in the first instance, to entitle him to recover. He showed a possession of eight or ten years, under a claim and color of title. It is clear, beyond all doubt, that Baker, who entered and held under the plaintiff, would be concluded from setting up any adverse title, and any person who succeeded to the possession under Baker would be equally concluded. In what way the defendant succeeded to the possession does not appear. It is not stated or alleged that he entered under any pretense or color of title, and the natural and just inference seems to be that he entered upon the possession which Baker had left, as an intruder without title. In that case, the possession of the plaintiff was sufficient to entitle him to recover, and the entry of the defendant must be considered as a trespass, according to the decision in the case of Jackson, ex dem. Murray & Bowen, v. Hazen (2 Johns. 22). The defendant is either such an intruder, or he entered under Baker; and in either case he is precluded from questioning the plaintiff's right of possession. Baker entered and held for years under D. and C., and they and their heirs are entitled, as against him, and as against all persons who came in under him, or who entered as intruders upon a possession which he left, to place themselves in statu quo, by regaining the actual possession which they had parted with to Baker, upon the faith of a contract. This is a settled rule of law, and founded in manifest justice.
But the defendant set up and offered to show an outstanding title subsisting in some third person; for he offered to prove that Casper Salisbury, as heir to his father Herman, held a farm which included the premises, "until Ludlow got possession in 1784, under his judgment and execution." The first question which presents itself here is, whether a mere intruder can be permitted to protect his intrusion under an outstanding title in a stranger. I think not. The rule has never been carried so far, and it would be a violation of a just principle to apply it to the case of a trespasser who enters upon another's possession without pretense of title. But, if the defendant could be permitted to set up this defense, the next inquiry is, whether what he offered to show was a subsisting title. It was upwards of twenty years between the time that Ludlow is stated to have acquired the Salisbury title under a judgment and execution, and the time of trial when the testimony was offered, and I believe the rule is, that where upwards of twenty years of adverse possession have run against an outstanding title it shall not be set up. The presumption in that case is that it is no longer a subsisting title. And this presumption was confirmed by the evidence which the plaintiff had already given in the case respecting the declarations of Ludlow. The title set up by the defendant, according to the testimony which he offered, resided in Ludlow, under a judgment and execution; and the plaintiff had shown that Baker purchased that title of Ludlow, and that, if it existed anywhere, it existed in him. This brings us, then, to this point of inquiry, whether a claim or title residing in Baker, and which he could not have set up while he was in possession, can be permitted to be set up by another person who succeeds Baker to the possession, and probably by collusion with him. I am clearly of opinion that this ought not to be permitted, and that it would be inconsistent to permit the defendant to protect himself by a claim or title in Baker, which Baker himself could not have set up, had he remained in possession. The necessity of guarding against fraud and collusion between tenants and third persons, requires the observance of this rule. I am, accordingly, of opinion that, in every view of the case which I can take, the defense offered by the defendant was inadmissible, and properly excluded.
The validity of the two partitions is not to be questioned. It did not require leases to make the division valid. A parol division, carried into effect by possessions taken according to it, will be sufficient to sever the possessions, as between tenants in common whose titles are distinct, and when the only object of the division is to ascertain the separate possessions of each. This was so admitted by the court in the case of Jackson, ex dem. Vandenberg v. Bradt (2 Caines 174). Those divisions being binding upon the parties, there did not then exist any objection to the competency of Howe as a witness. And as to the declarations of Ludlow, they became material only, in consequence of the defense set up by the defendant, and they then went to show that the title referred to was not regarded by the claimant as valid. Those declarations were made material only by the act of the defendant. When they were introduced by the plaintiff they were immaterial, for they went only to support a fact which appeared sufficiently without them, viz., that Baker never considered himself as deriving any title under Ludlow, paramount to that which he derived under Duncan and Campbell, and that his purchase from Ludlow never affected the dependent relation in which he stood to Duncan and Campbell.
The court are, therefore, of opinion that the motion, on the part of the defendant for a new trial, must be denied. Rule refused.
"Reports of cases argued and determined in the supreme court of judicature : and in the Court for the Trial of Impeachments and the Corrections of Errors in the State of New York" by William Johnson; ("Johnson's Reports") Vol.11, pgs.337 to 351 (California State Law Library, Sacramento, 1/2004; some case citations omitted here)
JACKSON, ex dem. A. J. STAATS, v. I. and A. STAATS; Supreme Court of Judicature of New York; 11 Johns. 337; August, 1814, Decided.
This was an action of ejectment, for an undivided share of land in possession of the defendants, in Kinderhook, tried before Mr. Justice Van Ness, at the Columbia Circuit, in September, 1813, when a verdict was taken for the plaintiff, subject to the opinion of the court on the following case:
Abraham Staats, the second, on the 24th September, 1731, made his last will and testament, and soon after died, seised in fee of the premises in question. By this will the testator devised to his wife, during her widowhood, all his farm, orchards, barns, lands, &c., and all his goods, &c. To his eldest son, Abraham, his heir-at-law, he bequeathed twelve shillings; and devised to his four sons Abraham, Johannis, Isaac and Jacob, the four hundred acres of land conveyed to his father by Thomas Duncan, on the 4th of November, 1685. To each of his five daughters, Maria, Catharine, Sarah, Elisabeth and Elsie, he gave sixty acres of woodland, in fee. The testator gave to his two other sons, Samuel and Joachim, and other heirs, after his wife's decease or marriage, his dwelling house, barns, orchards, &c., and all his lands, &c., except what he had already given to his sons and daughters, provided the said Samuel and Joachim should be bound to keep and maintain their said brother Abraham, until the Lord should give him a perfect mind and memory; and also keep and maintain their unmarried brothers and sisters; provided they assist them in their labor. The testator also gave all his lands on the flats, after his wife's death or marriage, to his six sons, by name, share and share alike: and directed all his debts, &c., to be paid out of his personal estate. The testator further devised as follows: "I give and bequeath to Catharine and Sarah Staats the sum £12 of each, out of my personal estate, and the remainder to be equally divided among my eleven children; and if any one or more happens to die without heirs, then his or their parts, or shares, shall be equally divided among the rest of the children; and also the money of my father-in-law, J. Wendell, belongs to my wife."
The premises in question were included in that clause of the testator's will, by which he devised to his two sons, Samuel and Joachim, "his dwelling-house, barns, orchards, and all his lands, except what he had already given to his sons and daughters." Joachim died without issue, in the year 1795, on the premises in question, which he had possessed since the death of his father, in common with the representatives of Samuel. Jacob and Elizabeth died without issue in the lifetime of their father. Elsie died after her father, leaving two children, Hendrick and Catharine, the former of whom died without issue; the latter died leaving issue, who died without issue. Johannis was the grandfather of the defendants, and Isaac the father of the lessor of the plaintiff. Isaac died before Johannis, in 1784, and left one son, the lessor of the plaintiff, and three daughters, and, by his last will, devised to his son, the lessor, as follows: "All my movable estate, orchards, barns, houses, outhouses, together with all my lands that I now have in possession, or in anywise claim, or hereafter may claim or own, be it where it, may be found."
It was proved by the defendants, that the lands in the old patent, southwest of the house, had been in possession of the defendants and their father above forty years, and had been actually cleared. Abraham, the eldest son of the testator, died long before the old French war; and Maria died before the late Revolutionary War, intestate and without issue -- Johannis and Isaac, the surviving devisees of the new patent, retaining possession thereof. The defendants gave in evidence a deed from Elsie and her husband, dated the 25th of March, 1790, to Abraham Staats, the father of the defendant, conveying all the lands she acquired under the will of her father, and which have since been uninterruptedly held under that conveyance. Sarah died before the Revolutionary War, without issue.
The defendants also gave in evidence a release from Samuel Staats to Joachim Staats, dated the 16th of January, 1749, of one undivided moiety of the lands devised to them by the will of their father; and a like release of the same date, from Joachim to Samuel, and which were witnessed by Isaac, the father of the lessor of the plaintiff.
The defendants also produced a deed from Joachim Staats to his cousin, S. G. Van Schaick, dated the 5th of July, 1755, for the consideration of natural love and affection, and also £50, of all the lands in the first patent to hold to Joachim for life, and after his death to the said S. G. Van Schaick, in fee. The defendants also gave in evidence the last will of S. G. Van Schaick, dated the 6th of June, 1772, devising the premises last mentioned to his two sons, Gosen and Myndert.
(part of counsel's arguments) Messrs. Vanderpool and Henry, contra.
All the sons were dead in 1795; all the children died. Joachim dying after Isaac, and after the death of all his co-devisees, the executory devise on his death was spent. The designatio personarum failed. The estate would then descend to the eldest son and heir at law of Abraham, the eldest son of the testator, and who died, intestate, before the French war. It then vested in Joachim, the elder brother of Abraham, and who left issue, which are now living. The issue of Isaac, a younger brother, cannot take by descent.
(MAD: more arguments of counsel omitted here)
(opinion) SPENCER, J., delivered the opinion of the court after stating the facts in the case:
It is to be inferred, though this case does not expressly state it, that all the children of Abraham Staats the second are dead; it is left uncertain from the case which of the children of the testator, Abraham Staats the second, survived the others. Joachim and Johannis appear to have survived all their brothers and sisters; but the fact does not appear which of them survived the other, and this may be a very material consideration. It is stated in one of the points made by the counsel that Joachim survived all his brothers and sisters, and that fact will be taken for granted.
1. Does the devise over apply to the real and personal estate, or to the latter only?
2. Does the devise over create an estate tail, or does it operate as an executory devise?
3. If the devise was good as an executory one, would the grandchildren of the testator take under it, as the last holder (Joachim) died without issue?
4. If the devise over created an estate tail, was Joachim's deed, in 1755, sufficient to pass his interest?
1. We are bound to construe this will so as to carry into effect the intention of the testator, unless we are restrained by fixed and established rules of construction. In the present case there are no such rules to fetter us, and we are to look at the whole will to find out whether the testator meant to devise over his personal estate only, or both personal and real. After several specific bequests of real and personal estate to his sons and daughters, and in fact, after exhausting his real and personal estate by devises and legacies, he uses these expressions: "And if any one or more happens to die without heirs, his or their parts or shares shall be divided among the rest of the children." The only reason for confining this devise over to the personal estate is, that it immediately succeeds the devise of the remainder of the testator's personal estate to his eleven children. I know of no adjudged case, nor have I met with even a dictum, that a will is to be construed grammatically, or that an expression of the testator's will which reason, propriety and his evident intention would extend to all the antecedent subjects, shall be confined to the one immediately preceding. It is impossible to conjecture why the testator should devise over such parts of his personal estate as any of his eleven children should die possessed of, without leaving an heir; and that with regard to his real estate, which, we must presume was much more valuable, he should have no such intention.
The plain and natural intention of the testator was, that such parts of his estate as he had specifically devised, both real and personal, should go over to his surviving children on the contingency stated in the will. In the case of The Executors of Moffat v. Strong, 10 Johns. 13, Moffat gave by his will certain specific parts of his real and personal estate to each of his sons, and directed the remainder of his movable estate to be divided among his heirs, and then added: "And if any of my sons should die without lawful issue, then let his or their part or parts be divided equally among the survivors," &c.
In that case it was made a question whether the limitation applied to the residuum of the movable estate, or whether it extended to all the previous devises to the son or sons who should so die. It was held that the provision being general in its language and object, the words did not, by any easy or natural construction, confine the limitation over to that part of the will. The two cases are perfectly alike in this respect, and must receive the same construction.
The case of Doe, ex dem. Stopford, v. Stopford, 5 East 501, is very much in point also; there the testator made specific devises to his sons in severalty, provision for his daughter and widow, and then gave the residue of his worldly effects to be divided amongst his three sons, and lastly, "if any of his said children died under age, and without issue, the share of him or her deceased should go equally amongst his surviving sons." Lord Ellenborough and all the judges held that the word "share" in the last clause could mean only the entire fortune or portion before given. There are several other cases which might be added; but the intention of the testator, and the current of decisions, are too strong to require it. The limitation over must be applied to both the real and personal property devised.
2. The point, whether the limitation over operates as an excutory devise, or to create an estate tail, admits of very little difficulty. The case of Fosdick v. Cornell, 1 Johns. 444, is in point, that this is a good executory devise. There the words were, "that if any of my said sons, William, Jacob, Thomas and John, or my daughter Mary, shall happen to die without heirs male of their own bodies, that then the lands shall return to the survivors, to be equally divided between them." The circumstances in the two cases are very parallel; and what weighed much with the court in that case exists here; the devise over was to the surviving devises in his will, among whom were his daughters, to whom he had devised no part of his real estate. I believe none of us have ever doubted the correctness of the decision in Fosdick v. Cornell, and it would be a waste of time to review the authorities there cited.
3. It has been objected that the devise over is not in fee, and that charging the devisees, Samuel and Joachim, with the keeping and maintaining their brother Abraham, would confer a fee under the first devise. The case of Jackson, ex. dem. Decker, v. Merrill, 6 Johns. 185, settles these questions. It was there decided, that charging the estate with payment of money in the hands of the devisees did not prevent its limitation over by way of executory devise; and the devise over of their parts, which in the hands of the first devisees was considered in fee, necessarily referred to the estate or interest before devised; and that the ulterior devise was clearly intended to be as extensive as the antecedent one.
I cannot but think the case imperfect as to some facts. I infer, however, from the course the argument has taken, not only that Joachim survived all his brothers and sisters, but that the plaintiff seeks to recover the part of land either devised to him, or of which he became possessed as such survivor; and then, under the words of the limitation, it becomes a question, whether, as the survivor, he had not a fee in the lands, which accrued to him as such; and, also, whether the word "children" shall be deemed to extend to grandchildren.
In White v. Thurston, Ambler 555, by deed, an estate was directed to be sold, on failure of issue male of A., and the money to be equally divided among four persons, or the respective issue of their bodies; but if any one of them be dead at that time (the failure of issue male of A), to be equally divided among the survivors of them and their respective children, in case any of them be dead, having issue of their body. They all four died before the contingency happened -- one without issue; one had a son living; one had grandchildren, but no children; and the fourth had children, grandchildren and great-grandchildren living. Lord Hardwicke held that the word "issue" carried it to all descendants, and that the word "children," in that case, which may admit of a more restrained signification, should be extended to the children, grandchildren and great-grandchildren; and they took per stirpes, and not per capita. In the case cited it is manifest Lord Hardwicke determined it on the clear intention of the testator, that in case of a failure of issue male of A, the money was to be divided among the four persons, or the respective issue of their bodies, in case any of them were dead on the happening of the contingency; and he considered the word "children" as used synonymously with the words "issue of their bodies." This is not an authority for saying that the word "children," used as it was by the testator, meant grandchildren.
The next case relied on is Gale v. Bennet, Ambler 681. That case was governed by the case of White v. Thurleton; and grandchildren were admitted to inherit, because the testator meant to let in the grandchildren, by using the word "issue" as synonymous with "children."
The next case is Crooke v. Brooking, 2 Vernon 106. R. Mallock gave to trustees £1,500, for such uses as he had declared to them, and by them not to be disclosed. One of them, by letter to the other, mentioned the trust, which was, that they, out of the profits, should allow Anne Crew a maintenance during her husband's lifetime, and if he died before her, then she was to have the money; but if her husband survived, the money to go amongst her sister's children, as she should advise. Anne Crew died in her husband's lifetime, leaving only one sister, Grace, but gave no directions or advice relative to the £1,500. Grace had only one child (the plaintiff) living at the death of Anne Crew, but had five children living at the death of the testator, Mallock, some of whom had children, who were parties to the suit; and the questions were whether the plaintiff, being the only child living of Grace, at Anne Crew's death, should have the whole £1,500; or whether the administrators of the dead children, or the grandchildren, the children of the deceased children, should have a share. Chancellor Jeffries decreed the money to be divided between the child living at the death of Anne Crew, and the children's children living at the death of Anne Crew. Upon a rehearing before the Lords Commissioners, they decreed for the plaintiff, and were "clear of opinion that where the devise is to children, the grandchildren cannot come in to take with the children;" but all admitted that if there had been no child the grandchildren might have taken by the devise to the children.
The next case is that of Clarke v. Blake, 2 Br. Rep. 320. The testator devised the premises in question "to the use of such child or children of his brother H. C., whether male or female, as should be living at the time of his said brother's death, as tenants in common." The question was, whether Bridget, one of the children, being unborn, but in ventre sa mere, at the time of the testator's death, should take a share, or be excluded. Lord Kenyon, then Master of the Rolls, held that the child, in ventre sa mere, could not take under a bequest to children, living at the time of the testator's brother's death. The Lord Chancellor Thurlow expressed an inclination the other way, but made no decision.
The case of Crooke v. Brooking concludes with an observation of the reporter, which, if correct and authoritative, as it is not, does not apply to this case; "but all admitted that if there had been no child, the grandchildren might have taken by the devise to his children." Sir Thomas Reynolds, in delivering his opinion in Stead v. Burrier, T. Raym. 411, says the word "son" is never taken for "grandson," no more than "child" is taken for "grandchild ;" and in Brown v. Peys, Cro. Eliz. 358, all the court resolved that where the devise was to one of Richard Forster's children, his child's child should not have it, for that it was out of the words.
The testator, in making the limitation over, never contemplated the case which has occurred; and when he says, "If any one or more happens to die without heirs, his or their parts or shares shall be equally divided among the rest of the children," he, undoubtedly, by the rest of the children refers to his own children, whom he had before named in his will. He died, not once thinking of his grandchildren, and it would be doing violence to his intention to say he did.
If this be so, then the last surviving child, whether he had issue or not, would retain, not only his share in the first devise, but also the shares which had accrued to him; for the estate devised to him was vested by the devise, and if no one could take under the executory devise, it would become inoperative, and could not devest him of what he had gained by the direct devise. It is, therefore, incorrect to suppose that if there was no one to take under the executory devise, the estate would revert to the right heirs of the testator.
It is contended that the deed from Joachim Staats to S. G. Van Schaick, was void, as it was to take effect in futuro, and that the lessor is one of the heirs of Joachim.
This is a very mistaken idea; ... this deed is good as a covenant to stand seised. The same point was adjudged in Massachusetts. We are of opinion that the defendants must have judgment.
Judgment for the defendants.
JARED DUNCAN, widow Dolly, Rev. Pension Application R-3122, NY, CT [Rejected] (FHL film 970,863)
Application 29 Jan. 1820, of Hillsdale, Columbia Co. NY; on pension list Dec. 1809 as invalid; almost total deafness and wounds in Rev. War; in fall of 1814 he was travelling in the night over Hearlem Hights near NY, he was knocked down by two men and robbed of his pocket book containing his pension money and original Pension Certificate; needs a new pension certificate so he can claim his pension money.
Petition 3 Nov. 1841, by Dolly Duncan, of Redding, Fairfield Co. CT, age 82 years, widow of Jared Duncan, formerly of Weston, Fairfield Co., soldier in Continental Army, wounded by enemy at battle of White Plains; served in the coast guards; she married Jared 13 Aug. 1780; he died 1 Feb. 1823; statement 3 Nov. 1841 by Thornton Lee, age 53; statement 26 Oct. 1841, by Pastor of Congregational Church of Parrish of Norfield, Weston, Fairfield Co. CT about marriage of Jared Duncan to Dolly Osborn on August 30, 1780; declaration 17 May 1841 by Jonathan Godfry of Weston, Fairfield Co. CT, age 87; neighbor of Jared Duncan.
Declaration 31 Jan. 1852 by Mrs. Polly O. Lee of Redding, Fairfield Co. CT: that she age 54; Mrs. Sarah Meeker age 70 of Redding; Joseph Duncan age 68 of Unionville, Duchess Co. NY; William Duncan age 65 of Camden [Oneida Co.], NY; and Dosher Whitlock of Luzerne Co. PA; are only surviving children of Jared and Dolly Duncan, deceased; that father Jared died on 1 Feb. 1823; that mother Dolly applied for pension 1841 but did not receive it; petition for back payments due Dolly to the date of her death on 19 March 1847.
Statement 22 Jan. 1852 by John Griffin, aged 83, of Redding, that Jared served under Capt. Daniel Duncan & Col. St. John in the coast guards; declaration 22 Jan. 1852 by Mrs. Polly Bennett, age 73, acquainted with Jared about 70? years, that Dolly died 19 March 1847, she attended her funeral, she is acquainted with Sarah Meeker, Joseph & William Duncan, Dosher Whitlock and Mrs. Polly O. Lee who are only surviving children of Jared and Dolly Duncan; declaration 22 Jan. 1852 by Elias Bennett, aged 73, similar statement to Mrs. Polly Bennett; statement 9 July 1852 by Daniel Dikeman, age 90, of Westport, Fairfield Co. CT, a pensioner; acquainted with Jared during Rev.; Jared was private for 2 years, entered service in vicinity of Westport now called Weston ...
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