Robison v. Female Orphan Asylum

Robert I. Robison, formerly of Portland, in the state of Maine, died on the thirteenth day of June, 1878, at that time a citizen of the state of New York and resident of Brooklyn, leaving a last will and testament, which was subsequently admitted to probate in the surrogate's court of Kings county, New York, and duly recorded on December 27, 1878. Letters testamentary thereon were on the same day issued and granted to Jane S. Robison, his widow, who alone qualified as executrix. The testator, at the time of his death, was seized of real estate in the city of Portland, and also possessed of a considerable amount of personal property. The following is a copy of the will:

'I, Robert I. Robison, of Portland, in the state of Maine,     being in a sound disposing mind and memory, do make and      publish this my last will and testament. And, first, my will     is that my executors see that my body be buried in a decent      and proper manner in the family vault in the Eastern Cemetery      in the city of Portland aforesaid. Secondly, I will all my     just debts be paid in full, and from the balance I will that      with whatever property may be standing in my wife's, Jane S.      Robison's, name, at the time of my death, that my executors      make up said amount to the sum of eight thousand and five      hundred dollars; it being the amount, or thereabouts, which      she received from her father's and mother's estates; it being      my will that the principal shall be kept good to her and her      heirs, but not the interest. This is to be in full for all     claims she may have on my estate arising out of the use of      her property. Thirdly, i further will that she may have the     income of all my estate, she having the right to spend the      same, but not to have it accumulate for her heirs. Fourthly,     it is my will that if my sister, Ann Smith, wife of Jacob      Smith of Bath, in the state of Maine, and Eleonora Cummings      Robison, wife of Thomas Weeks Robison, of Kingston, Canada      West, be living at the deat  of myself and wife, Jane S.      Robison, aforesaid, that they, or the one that may be then      living, shall have the income of all my estate as long as      they may live, and at their death to be divided in three      parts, one-third part of the income to go to the Portland      Female Orphan Asylum, one-third of the income to the Widows'      Wood Society, and one-third of the income to the Home for      Aged Indigent Women, all of the city of Portland, and state      of Maine. Lastly, I do nominate and appoint my wife, Jane S.     Robison, and John Rand, Esq., to be my executors of this my      last will and testament.

'In testimony whereof I have hereunto subscribed my name and     affixed my seal this thirty-first day of October, in the year      of our Lord one thousand eight hundred and sixty-two.

'[S'd]

ROBERT I. ROBISON. [L. S.]

'Signed, sealed, and declared by the said Robert Ilsley     Robison to be his last will and testament in the presence of      us, who, at his request and in his presence, have subscribed      our names as witnesses hereto.

'CHAS. H. ADAMS.

'B. F. HARRIS.

'JASON BERRY.'

On December 29, 1881, the present bill in equity was filed by Jane S. Robison, as widow and executrix, for the purpose of obtaining a construction of the will, the defendants being charitable institutions named therein, and the only other parties in interest, Ann Smith and Eleonora Cummings Robison, the persons mentioned in the fourth item of the will, having both died before the testator. It was contended on the part of the complainant that, in consequence of the lapse of the devise and legacy to Ann Smith and Eleonora Cummings Robison, the bequest to the defendants never took effect, and that consequently the complainant was entitled to the estate absolutely, by virtue of the devise to her, or, in the alternative, because the testator had died intestate as to that part of the estate mentioned in the fourth subdivision of the will. The decree of the circuit court, however, was 'that the complainant is entitled only to the income of the estate during her natural life, and that the fourth subdivision of the last will and testament of the testator is operative and valid, and was so at the time the will took effect, and that the defendant corporations acquired by virtue thereof the right, from and after the death of the complainant, to the perpetual income of the said estate.' To review that decree the present appeal has been brought.

Elihu Root and ''Saml. B. Clarke'', for plaintiff.

John Rand, for defendants.

MATTHEWS, J.