Miller v. Miller
New York Supreme Court
Action for the construction of a will and for partition. Title comes through the will of James P. Miller, of whom the parties are the children and widow.
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Action for the construction of a will and for partition. Title comes through the will of James P. Miller, of whom the parties are the children and widow. It was executed September 18th, 1884, and he died in 1895. The' third clause is as follows: “As my wife Jane G-. Miller has in her own name real estate which was purchased with money earned by her and myself together, I hereby give, devise and bequeath to her. all my right and interest therein and request her to release her right of dower in my residuary estate.” At the- time the said will was executed there were two outstanding mortgages On…
1Opinion of the Court
Gaynor J.:
I do not think that a devise like this one, of all the “ right and interest ” of the testator in real property, ever included the interest secured by mortgages on real property. Whatever doubt one may have on this head comes from a lack of discrimination in respect of the former double nature of such mortgages, arising from the different effect given to them at law and in equity. In law the mortgage was held to convey the fee, subject only to being defeated by a compliance with the condition on the exact day appointed. -The mortgagee could maintain ejectment to get possession of the…
2Cases cited6 opinions
- Demarest v. WynkoopNew York Court of Chancery · 1817
- Trimm v. . MarshNew York Court of Appeals · 1874
- Rogers v. . RogersNew York Court of Appeals · 1897
- Mellen v. BanningNew York Supreme Court · 1893
- Palmer v. ParetNew York Supreme Court · 1894
1 more not listed; retrieve them via the Exa API.
3Cited by3 opinions
- Downing v. HartshornNebraska Supreme Court · 1903
- Estate of LambCalifornia Superior Court · 1910
- Mitchell v. MitchellAppellate Division of the Supreme Court of the State of New York · 1910