Legal Opinion

Heard v. Horton

Court for the Trial of Impeachments and Correction of Errors

Decided May 15, 1845PublishedCited by 27 opinions

Ejectment for one-third part, undivided, of a farm in Orange county, tried at the circuit court for that county, held in September, 1841, before Ruggles, C.’'Judge.

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Ejectment for one-third part, undivided, of a farm in Orange county, tried at the circuit court for that county, held in September, 1841, before Ruggles, C.’'Judge. In 1817, Jonathan Horton, senior, who then owned the farm, made his will, so as to pass real estate ,• and he died in 1822. After making sundry devises and bequests to his son John Budd Horton and others, the will contained this clause: “I give and bequeath to my son Jonathan Horton the remainder of my lands, consisting of about eighty-acres, with all my personal property excepting,” &c. “on condition that he pay to my daughter…

1Opinion of the Court

By the Court, Beardsley, J.

The devisee, Jonathan Horton, took a fee by implication, under his father’s will, being thereby charged personally with the payment of debts and a legacy, in respect to the land devised. (Spraker v. Van Alstyne, 18 Wend. 200, and cases there referred to.)

The devise over fo “the heirs of John B. Horton,” Avas upon the contingency that Jonathan, the first devisee, “ should die Avithout issue at his decease.” This was a good executory devise. These words do not import an indefinite failure of issue, but a failure at the death of the first taker. Such a limitation is…

2Cases cited1 opinion

  1. Van Wyck v. SewardNew York Supreme Court · 1837

3Cited by27 opinions

  1. Doctor v. . HughesNew York Court of Appeals · 1919
  2. In Re the Will of ChalmersNew York Court of Appeals · 1934
  3. Barber v. Pittsburgh, Fort Wayne & Chicago Railway Co.Supreme Court of the United States · 1897
  4. Kalbach v. ClarkSupreme Court of Iowa · 1907
  5. Shimer v. MannIndiana Supreme Court · 1884

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