McLoughlin v. Maher
New York Supreme Court
Controversy submitted upon admitted facts under section 1279 of the Code of Civil Procedure. The plaintiff, as vendor, seeks to compel the specific performance by the defendant, as vendee, of a contract for the sale of real estate. The defendant claims that the title of the plaintiff is not perfect, and refuses to accept the same. John Douglass died seized of the premises in question, leaving a ■will.
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Controversy submitted upon admitted facts under section 1279 of the Code of Civil Procedure. The plaintiff, as vendor, seeks to compel the specific performance by the defendant, as vendee, of a contract for the sale of real estate. The defendant claims that the title of the plaintiff is not perfect, and refuses to accept the same. John Douglass died seized of the premises in question, leaving a ■will. He left a widow and eight children, one.daughter and seven sons, his only heirs-at-law. By the will, after sundry specific devises and bequests in favor of his widow, he provided as follows : “…
1Opinion of the Court
Gilbert, J.:
By the sixth clause of the will an absolute estate in fee was devised to Mrs. De Forest. By the eighth clause that estate was changed into a fee with a contingent limitation over, whereby the estate was devised to the brothers of Mrs. De Forest on her death Avithout issue. (1 R. S., 725, § 27.) It is probable that the testator referred to the death of Mrs. De Forest in his own life-time. (Kelly v. Kelly, 61 N. Y., 47; Livingston v. Greene, 52 id., 118.) But if he did not, the eighth clause is not repugnant to the sixth. (Norris v. Beyea, 13 N. Y., 273, Gilman v. Reddingion, 24…
2Cases cited4 opinions
- Norris v. . BeyeaNew York Court of Appeals · 1855
- Kelly v. . KellyNew York Court of Appeals · 1874
- Freeborn v. WagnerNew York Supreme Court · 1867
- Freeborn v. WagnerNew York Court of Appeals · 1868