Jackson ex dem. Denniston v. Denniston
New York Supreme Court
THIS was an action of ejectment. The cause was tried at the Orange circuit, before Mr. Justice Thompson, the 5th September, 1808, when a verdict was taken for the plaintiff, by consent, subject to the opinion of the court, on a case containing the following facts: George Denniston died seised of the premises in question, on or about the 10th January, 1804, having previously made his will, dated the 21st December, 1803. There were three subscribing witnesses to the will, one…
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THIS was an action of ejectment. The cause was tried at the Orange circuit, before Mr. Justice Thompson, the 5th September, 1808, when a verdict was taken for the plaintiff, by consent, subject to the opinion of the court, on a case containing the following facts: George Denniston died seised of the premises in question, on or about the 10th January, 1804, having previously made his will, dated the 21st December, 1803. There were three subscribing witnesses to the will, one of whom, George Denniston, was a son, and a devisee of the testator. The defendant is the widow of George Dennis-ton,…
1Per curiam
The statute is peremptory. It makes the devise to the witness void, and, of course, no title can exist under it. As the defendant claims under a sale by the witness, as devisee, her title must be void.
The lessors claim an undivided part only, and if they show title to any part, they will recover pro tanto. If the defendant meant to set up a tide as tenant in common, she ought to have entered into the common rule specially. As she has not done so, it was not necessary for the plaintiff to prove an actual ouster. (a)
Judgment for the plaintiff.
See Sellon’s Pr. 190. 3 Burr. 1895.
2Cited by3 opinions
- In re the Judicial Settlement of the Account of DwyerAppellate Division of the Supreme Court of the State of New York · 1920
- In re the Estate of SmithNew York Surrogate's Court · 1937
- In Re the Accounting of MarksNew York Court of Appeals · 1941