Legal Opinion

Cunningham v. . Parker

New York Court of Appeals

Decided April 30, 1895PublishedCited by 30 opinions

Appeal from judgment of the General Term of the Supreme Court in the third judicial department, entered upon an order made December 19,1894, which affirmed a judgment in favor of plaintiffs entered upon a decision of the court on trial at Circuit. The nature of the action and the facts, so far as material, are stated in the opinion. Such a construction should be given to the will as to prevent partial intestacy.

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Appeal from judgment of the General Term of the Supreme Court in the third judicial department, entered upon an order made December 19,1894, which affirmed a judgment in favor of plaintiffs entered upon a decision of the court on trial at Circuit. The nature of the action and the facts, so far as material, are stated in the opinion. Such a construction should be given to the will as to prevent partial intestacy. (2 Redf. on Wills, 442; Schutt v. Moll, 132 N. Y. 122; Vernon v. Vernon, 53 id. 351; Provost v. Calyer, 62 id. 210; Byrnes v. Baer, 86 id. 210; Van Derpoel v. Loew, 112 id. 167.) The…

1Opinion of the CourtFinch, J.

The plaintiff’s complaint is framed for a recovery under the provisions of the Code allowing actions against devisees or heirs at law for the purpose of applying real estate descended or devised to the payment of the general debts of the intestate or testator. There are two modes of reaching that result, differing in the form and character of the proceeding, and also in the scope of the ultimate relief. Within three years from the granting of letters creditors may apply to the surrogate by a petition setting forth the prescribed facts and asking for a sale of the land and an application of…

2Cases cited3 opinions

  1. Briggs v. . CarrollNew York Court of Appeals · 1889
  2. Graves v. . DeterlingNew York Court of Appeals · 1890
  3. Matter of City of RochesterNew York Court of Appeals · 1888

3Cited by30 opinions

  1. Fitzgerald v. County of ModocCalifornia Supreme Court · 1913
  2. Schrader v. SchraderSupreme Court of Iowa · 1912
  3. Munro v. Syracuse, Lake Shore & Northern RailroadNew York Court of Appeals · 1910
  4. Henderson v. GrayNorth Dakota Supreme Court · 1914
  5. Buttram v. FinleyCalifornia Court of Appeal · 1940

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