VOL. III. THE COUNSELLOR. OCTOBER, 1893. No. 1. A DISCUSSION OF THE QUESTION WHETHER THE SUPREME BY EDWIN L. FORD. One F. died seized of a parcel of land situated in the State of New York, leaving a will proved before the Surrogate of Westchester County, New York, in the year 1846, by which after directing the payments of his debts, and bequeathing certain personal property, the testator devised and bequeathed the interest, income and dividends of all the rest, residue and remainder of his personal estate and the rents, issues and income of all his real estate to his wife for her life, and then provided as follows: "Upon the decease of my said wife, I order and direct the whole of my estate, real estate and personal, to be converted into cash, and the proceeds thereof to be divided into four equal parts. One equal part or share thereof I give and bequeath to my son Edward G., and to his executors, administrators and assigns forever. One other equal part or share thereof I give and bequeath to my son Thomas H. and to his executors, administrators and assigns forever. One other equal part or share thereof I order and direct to be placed and kept at interest by my executors on bond and mortgage of real estate, and the interest thereof by them applied to the use of my daughter Jane H., for and during her natural life for her own sole and separate benefit, exclusive of any future husband, and the principal at her death to be divided and distributed unto and among her lawful issue, if any, each child of hers then living to take one equal share thereof, and the issue of any deceased child of hers taking the share which their parent would have taken, jointly and equally. One other equal part or share thereof I order and direct to be placed at interest by my executors on bond and mortgage of real estate and the interest thereof by them applied to the use of my daughter Joanna for and during her natural life for her own sole and separate benefit, exclusive of her present or any future husband, and the principal at her decease, to be distributed unto and among her lawful issue then living, if any, each child of hers then living to take one equal share thereof, and the issue of any deceased child of hers taking the share their parent would have taken jointly and equally. In case of the death of my said daughters, Jane and Joanna, or either of them, without leaving lawful issue surviving, it is my will that the share of my estate hereinbefore appropriated for the benefit of such daughter or daughters respectively so dying, shall, at the time of her death, go to and be divided among my then surviving children and the lawful issue of such of my children, if any as shall have deceased leaving lawful issue then living, each survivor of my said children taking one equal share thereof and the lawful issue of any deceased child taking the share which their parent would have taken, if living. Upon the division of my estate as hereinbefore directed, I order and direct all my real estate to be converted into cash by sale thereof at public auction. I hereby nominate, constitute and appoint my said wife, and my said sons Edward and Thomas and my son-in-law William P., executors of this my last will and testament, giving and granting to them and the survivor and survivors of them, and to such of them as shall act for the time being, full power and authority to sell and dispose of all or any part of my real estate in fee simple absolutely at public auction, and I order and direct my executors, the survivors and survivor of them, and such of them as shall act for the time being, to give good and sufficient conveyances in the law to the purchasers of my real estate upon the sale thereof." All the executors named in the Will duly qualified as such, and letters testamentary were issued to them by the Surrogate of Westchester County. Testator's widow died in 1854; Joanna, a daughter of testator, died in 1862, leaving her surviving her husband and three children. She left a will, which would have no bearing upon the question we are about to consider. Edward G., a son of testator and an executor and trustee under his father's will, died in 1864, leaving him surviving a widow and nine children. He also left a will which it is unnecessary to consider. Thomas H., a son of testator, and an executor and trustee under his father's will, died in 1873, unmarried and without issue, leaving a sister, and various nephews and nieces, his only heirs at law. He also left a Will, which it is unnecessary to consider. William P., a son-in-law of testator, and the sole remaining executor and trustee under his will, died prior to 1873. On May 15, 1873, upon petition of testator's daughter Jane H., an order was |