Duncans in New York Co. NY Court Records part 2


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

Last revised March 31, 2004


"Reports of cases argued and determined in the Surrogates' Courts of the state of New York" by Amasa A. Redfield, Vol.III; (Redfield's Surrogate) Vol.3, pgs.153 to 154 (California State Law Library, Sacramento, 2/2004)
      Matter of DUNCAN; New York County, Surrogate's Court, New York; 3 Redf. Sur. 153; August, 1877.
      Hon. D. C. CALVIN, Surrogate.
      In the matter of the estate of Peter W. Duncan, deceased.
      (MAD: headnote not included here)
      The question determined came up on the accounting of a collector of a decedent's estate, appointed by the surrogate.
      VERNON & HILL, for the collector.
      HENRY TAYLOR, for the next-of-kin.
      THE SURROGATE.-- The question submitted is, whether the special administrator or collector is entitled to commissions, the same as executors and administrators, for receiving and paying out moneys. It has been assumed, generally, in practice that the special administrator was entitled to the same commissions as an ordinary executor or administrator, though the statute (2 R.S., 76, Sec.39,) makes no provision for his compensation, except that it provides that he may exercise such authority at such reasonable expense as the surrogate shall allow. I am of the opinion that the word expense in that statute does not refer to the compensation to be allowed a collector for the performance of his duty; but while his duties are somewhat restricted, yet he acts under the authority of the surrogate, is required to give security for the right performance of his duty, and under the act of 1870 (ch. 359, Sec.10), and under the authority of the surrogate, he may pay the debts of the estate. I see no reason why he should not be compensated at the same rate as an administrator, and where he accounts for the purpose of paying over the fund to the administrator when appointed, under the order of the surrogate, I am of the opinion that he should be allowed full per centage for receipt and payment over.
      Order accordingly.

"New cases selected cheifly from decisions of the courts of the state of New York" with Notes, by Austin Abbott, Vol.IV; (Abbott's New Cases) Vol.4, pgs.275 to 279 (California State Law Library, Sacramento, 2/2004)
      DUNCAN v. DUNCAN; N.Y. Supreme Court, First Department; 4 Abb. N.C. 275; Special term, April, 1878.
      (MAD: headnotes omitted here)
      Action for the construction of a will.
      L.I. LANSING and WM. WARE PECK, for the plaintiff.
      B.C. CHETWOOD, for the defendants.
      VAN VORST, J.-- This is an action brought by Mary E.E. Duncan against John Duncan and others, for the construction of the will of Alexander Duncan, deceased, who died seized and possessed of real estate in the cities of New York and Brooklyn.
      The plaintiff, who is a daughter and only child of the deceased, is a devisee under the will.
      The question sought to be determined in this action is, what estate in the realty does the will create in the plaintiff?
      The will gives the income of one-half of all the real estate of which the testator died seized, to his wife Sarah Duncan, during her natural life, or as long as she should continue to be the widow of the testator, and upon the death of his widow unmarried, all the real estate, with all the profit and accumulations, it is declared, "shall be the property of the testator's daughter," the plaintiff, which in such contingencies is given and devised to her, to be possessed and enjoyed by her when she shall attain her majority. The testator further declares, that at the death of his daughter, "should she die married, and have issue, then I devise and direct, that the said estate and its accumulations and profits, be equally divided thus: one-half thereof to the lawful issue of my daughter, to be divided to and among them, share and share alike, and the remaining moiety or half part thereof to be divided between the lawful heirs of my brother, John Duncan, share and share alike."
      No question arises with regard to the personal estate, which has been fully administered.
      The widow of the testator has elected to take her dower in the real estate, and no question is raised as to her rights. She is not a party to the action.
      The claim of the plaintiff is, that all that portion of the will which provides that at the death of the plaintiff, married, the estate and its accumulation be divided among her issue and the heirs of the testator's brother John Duncan, is illegal and void, and that an estate in fee simple absolute is vested in the plaintiff, of, in and to all the real estate whereof her father died seized and possessed, and that certain moneys, the surplus proceeds arising on the sale of a portion of the real estate whereof her father died seized, and which are now deposited in court, be regarded as real estate, and that as such the plaintiff is entitled thereto.
      The children of John Duncan are made parties defendants, and it is alleged that they claim to have a vested future estate in the testator's real estate.
      The plaintiff's claim is interposed through her counsel in two aspects.
      First. That by force of the will itself the devise to her is of an absolute fee in the real estate, and that her right to such estate is wholly unaffected by the clauses devising over to the heirs of John Duncan and her own issue.
      It is further insisted, on the plaintiff's behalf, that the devise to her carries the absolute fee, and that it was the manifest intention of the testator to give her the fee absolutely.
      That should the plaintiff die unmarried or without lawful issue, the devise over would fail, and an intestacy would result; and that such consequence should determine the construction in favor of herself. And second, in opposition to the will, it is claimed that the devise over to the heirs of John Duncan is void, it being, as is urged, a remainder limited upon the lives of three persons, Sarah, Mary and John Duncan, severally, and is an attempt to suspend the absolute power of alienation for more than two lives in being at the death of the testator.
      It appears to me that authority is clearly against the right of the plaintiff to maintain this action in equity, for the construction of her father's will, whether her claim be advanced under or in opposition to the will.
      The will creates no trusts in respect to the real estate in the executors or others.
      Courts of equity have jurisdiction, in cases of trust, and over actions commenced by trustees or cestuis que trust, when it becomes necessary to settle and determine questions involving the construction of trusts under a will. In Bowers v. Smith (10 Paige, 200), the chancellor says, "I am not aware of any case in which an heir at law of a testator, or a devisee, who claims a mere legal estate in the real property, when there was no trust, has been allowed to come into a court of equity for the mere purpose of obtaining a judicial construction of the provisions of a will."
      The decision of legal questions belongs to courts of law, to be raised in an appropriate action, except when they arise incidentally in the legitimate exercise of the powers and jurisdiction of a court of equity.
      I am now aware that the authority of Bowers v. Smith has been questioned; it has been repeatedly approved and followed. In Bailey v. Briggs (56 N.Y. 407) it is stated, in substance, that jurisdiction is entertained in equity to give construction to a doubtful or disputed clause in a will, when the court is moved in behalf of an executor, trustee, or cestui que trust, the jurisdiction in such case being incidental to that over trusts (Sutherland v. Ronald, 11 Hun. 238). In so far as the plaintiff seeks to overthrow the portions of the will in favor of the heirs of John Duncan, she claims in opposition to the will; and Chipman v. Montgomery (63 N.Y. 221) is clearly against the right of the plaintiff to maintain this action. Keteltas v. Keteltas (53 How. Pr. 65), in which Justice Van Brunt upheld an action in favor of the widow to obtain a construction of her husband's will, is not opposed to the conclusion now reached.
      In that case the action was by the widow against the executors under her husband's will. In such case, where the executor takes the legal estate in the personal property, he does so for the legatees or next of kin. Executors are trustees. Justice Van Brunt held the widow to be a cestui que trust. In such case an action will lie in favor of the cestui que trust against the executors, to have the construction of the will settled so as to obtain a judgment against the executors for such portion of the estate as the party claiming is entitled to have (Bowers v. Smith, supra). But no relation of trustee and cestui que trust exists between the parties to this action, nor is the subject of litigation a trust.
      The executors under the will of the father of the plaintiff are not parties to the suit, nor is there any reason why they should be.
      They have no interest or estate in the question or property. The defendants have not received any portion of the estate, and hold no money or property in which the plaintiff is interested. It appears to me that the plaintiff's legal right and title to the property in question must be determined in an appropriate action or proceeding for the purpose.
      A jurisdiction which this court exercises with respect to trusts, cannot be invoked to uphold an action for recovery of money or property, which on principle and authority must be determined in another forum.
      The plaintiff's complaint must therefore be dismissed, but without costs.

"Reports of cases argued and determined in the Court of Chancery of the State of New-York" by Alonzo C. Paige, Counsellor at Law, Vol.II; Vol.10 N.Y. Chancery; (Paige's Chancery, NY) Vol.2, pgs.99 to 102 (California State Law Library, Sacramento, 2/2004)
      DUNCAN and others, trustees, vs. DODD and others; Court of Chancery of New York; 2 Paige 99; March 17th, 1830.
      THIS was an application for the re-sale of mortgaged premises in the city of New-York. The property belonged to infant defendants, subject to the right of dower of their mother. The amount due on the mortgage, exclusive of costs, was less than $1700, and the premises were struck off to Turner the purchaser for $2025. Turner went into possession by permission of the master, and paid ten per cent. on the purchase money; but the decree not being enrolled, no conveyance had been executed. The mother and step father of the infants, as soon as they heard of the sale, applied to the purchaser to relinquish his purchase, offering to indemnify him for his expenses, but he declined their offer. The petitioners stated in their petition that the sale had been a surprise to them, that the property was worth more than $4000, and they offered an advance of fifty per cent. on the purchase, for the benefit of the infant defendants. The application was opposed by the purchaser, who stated among other things that before he had any notice of the intention of the petitioners to apply for a re-sale, he had agreed to rent the property, for two years from the first of May next, to the tenant who is now in possession thereof.
      W. SILLIMAN, for the petitioners.
      J. LEVERIDGE, for the purchaser.
      [opinion] THE CHANCELLOR. By the practice of the English court of chancery it is almost a matter of course to open the biddings on a master's sale, before the confirmation of his report, upon the offer of a reasonable advance on the amount bid, and the payment of the costs and expenses of the purchaser. As a general rule, an advance of ten per cent. is sufficient to authorize a re-sale. (Garston v. Edwards, 1 Sim. and Stu. 20.) But the biddings will not be opened where the amount of the advance is less than 40. (Farlow v. Wieldon, 4 Mad. Rep. 460.) The English practice as to opening biddings has not been adopted in this state, and it is probably not desirable that it should be introduced here. In Williams v. Attleborough, (Turner's Rep. 75,) Lord Eldon says, "During a period of nearly half a century which I have passed in this court, and in which Lord Apsley, Lord Thurlow, the Lords Commissioners, with Lord Loughborough at their head, then Lord Loughborough as chancellor, and after him the Lords Commissioners, with Chief Baron Eyre at their head have presided here, I have heard one and all of them lament that the practice of opening biddings was ever introduced. I confess that I have great doubts myself upon the subject; but after a practice so long established, it is not for me to disturb it." If such are the opinions of English chancellors as to the dangerous tendency of the practice in that country where real estate has, comparatively, a fixed and certain value, a re-sale, ought not to be granted here except in very special cases. In the city of New-York, real estate when sold by a master under a decree or order of this court generally produces its fair value. It is therefore essential to the interests of those whose property is thus sold, that purchasers should continue to retain full confidence in the safety of such purchases; and that they will not, as a matter of course, be disturbed merely because a good bargain has been obtained. And when the court is obliged to order a resale of property purchased in good faith, the former purchaser must be fully and liberally indemnified for all damages, costs and expenses to which he has been subjected.
      In Williamson v. Dale, (3 John. Ch. Rep. 292,) Chancellor Kent permitted a re-sale, on the grounds which were certainly not stronger in favor of the application than those which are here presented. The property in this case is the sole dependance of two infant children, and has been sold for half its value to pay a debt a little less than the amount of the purchase money. The property was sacrificed, either through the misapprehension, or negligence, of their mother and step father. Immediately after they heard of the sale they made the application to the purchaser to let them redeem the property for the benefit of the infants, and they now offer an advance of more than one thousand dollars on the former bid. If the defendants were adults, and the property had been sacrificed by their own negligence or inattention, I should not disturb the sale; and now it can only be done on condition that a full indemnity is offered to the former purchaser. The fact that he has agreed with the former tenant of the premises to rent the same to him for two years from May next, does not stand in the way of a re-sale. If it is a mere verbal agreement under which nothing has been done to change the rights of the parties, it is not valid under that provision of the revised statutes which requires all leases for more than one year to be in writing. (2 R.S. 135. Sec. 8.) But if the agreement is valid, the property must be put up and sold, subject to the rights of the lessee.
      If, within ten days, the petitioners, or any other person in their behalf, give sufficient surety to the satisfaction of the master, that the premises shall actually produce fifty per cent. advance upon a re-sale, or if they deposit with the master within that time the fifty per cent. advance offered by them, he must put up the property again and re-sell the same upon such notice as he may deem reasonable, not less than one week. In that case the master is to pay to the former purchaser, out of the amount of such advance, the interest of his deposit and of the whole purchase money which, he has kept on hand, together with all reasonable costs and expenses which he has paid or been subjected to in opposing this application, or in investigating the title. The property must also be sold, subject to any rights which the present tenant may have under the alleged agreement with Turner.

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