Kelly v. Kelly
New York Supreme Court
Oase agreed upon under section 372 of the Code. The question presented is the construction of the will of James Kelly, deceased, who died on the 20th of December, 1852, leaving a last will and testament, which was admitted to probate on the 29th of December, 1852, by the surrogate of Albany county. The property devised consisted of a house and lot situated in the city of Albany. The first provision of the will is for the payment of his debts.
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Oase agreed upon under section 372 of the Code. The question presented is the construction of the will of James Kelly, deceased, who died on the 20th of December, 1852, leaving a last will and testament, which was admitted to probate on the 29th of December, 1852, by the surrogate of Albany county. The property devised consisted of a house and lot situated in the city of Albany. The first provision of the will is for the payment of his debts. The second is, “ I give, devise and bequeath unto my beloved children, Mary Ann Kelly and James Kelly, all the real and personal estate of which I may…
1Opinion of the Court
By the Court
Miller, P. J.
The second clause of the will of the testator, beyond any question, if considered by itself, devises an estate in fee to Mary Ann Kelly and James Kelly, the children of the testator. Under the Revised Statutes no words of inheritance are required, and the devise passed all the testator’s real and personal estate. (1 R. S., 748, § 1.) There is nothing, I think, in the subsequent provisions of the will inconsistent with this construction of the second clause.
*445I think that the third clause was intended to provide for the payment of debts and the support of the infant…
2Cases cited3 opinions
- Pond v. BerghNew York Court of Chancery · 1843
- Hyatt v. PugsleyNew York Supreme Court · 1856
- Fowler v. New York Indemnity InsuranceNew York Supreme Court · 1856
3Cited by4 opinions
- Nellis v. . NellisNew York Court of Appeals · 1885
- In Re the Will of SamsonNew York Court of Appeals · 1931
- In re the Judicial Settlement of the Account of Proceedings of YoungsNew York Surrogate's Court · 1911
- Delafield v. ShipmanNew York Court of Appeals · 1886