Legal Opinion

Burnham v. Comfort

New York Supreme Court

Decided September 15, 1885Published

Appeal from a judgment in favor of the plaintiff, entered upon the trial of this action by the court without a jury. In 1863 Oliver Comfort, the father of tbe parties to this action, made bis will, by wbicb he gave a life estate in the houses and lots in controversy to his brother Robert Comfort, and the remainder thereof to the plaintiff. He gave his home, farm and all the rest and residue of his estate, to the defendant and made him one of his executors.

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Appeal from a judgment in favor of the plaintiff, entered upon the trial of this action by the court without a jury. In 1863 Oliver Comfort, the father of tbe parties to this action, made bis will, by wbicb he gave a life estate in the houses and lots in controversy to his brother Robert Comfort, and the remainder thereof to the plaintiff. He gave his home, farm and all the rest and residue of his estate, to the defendant and made him one of his executors. Before making such will the testator had paid to his children, other than the parties hereto, what he and they treated as their share in…

1Opinion of the Court

BoabdmaN, J.:

If the testator had given the plaintiff a legacy of $500 instead of the devise of land stated in the will, the payment made by him May 14, 1864, to plaintiff, would have adeemed or satisfied the legacy. Ve may, therefore, pass by or disregard all authorities-founded upon satisfaction of legacies.

It cannot be treated as a case of advancement because that is allowed only in case of intestacy. (1 R. S. [Edm. ed., 105], p. *754, § 23 4 Kent’s Com., pp. *418, 419 ; Thompson v. Carmichael, 3 Sandf. Ch., 120.) Here the property was wholly disposed of by will, and no right reserved therein, as…

2Cases cited3 opinions

  1. Weston v. JohnsonIndiana Supreme Court · 1874
  2. Winegar v. . FowlerNew York Court of Appeals · 1880
  3. Langdon v. AstorThe Superior Court of New York City · 1854

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