Underwood v. . Curtis
New York Court of Appeals
Appeal from judgment of the General Term of the Supreme Court in the fourth judicial department, entered on an order made June 24,1889, which reversed an interlocutory judgment overruling the demurrer interposed by the defendants and decreeing partition or sale of the premises described in the complaint, and which dismissed the complaint. This action was brought to partition certain lands of which Palmer H. Curtis died seized.
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Appeal from judgment of the General Term of the Supreme Court in the fourth judicial department, entered on an order made June 24,1889, which reversed an interlocutory judgment overruling the demurrer interposed by the defendants and decreeing partition or sale of the premises described in the complaint, and which dismissed the complaint. This action was brought to partition certain lands of which Palmer H. Curtis died seized. Said Curtis'left him surviving a widow and four daughters, two of whom are the plaintiffs in this suit. He left a last will and testament and a codicil thereto, that…
1Opinion of the CourtParker, J.
The will and codicil are to be construed together as if they were one instrument. ( Ward v. Ward, 105 N. Y. 68.)
And in the construction now to be made we shall consider first whether the instrument operated to convert testator’s real estate into personalty. It has long been the established rule that where executors are clothed with the power and duty to sell a testator’s real estate and distribute the proceeds in the manner provided by the will that the real estate will be deemed converted into personalty. (Everitt v. Everitt, 29 N. Y. 39 ; Power v. Cassidy, 79 id. 602.) A consideration of…
2Cases cited22 opinions
- Manice v. . ManiceNew York Court of Appeals · 1871
- Savage v. . BurnhamNew York Court of Appeals · 1858
- Schettler v. . SmithNew York Court of Appeals · 1869
- Robert v. . CorningNew York Court of Appeals · 1882
- Cutting v. . CuttingNew York Court of Appeals · 1881
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3Cited by66 opinions
- In re Estate of WalkerlyCalifornia Supreme Court · 1895
- Robb v. . Washington Jefferson CollegeNew York Court of Appeals · 1906
- Ward v. BrownWest Virginia Supreme Court · 1903
- Edgerly v. BarkerSupreme Court of New Hampshire · 1891
- Johnson v. PrestonIllinois Supreme Court · 1907
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