Downing v. Wherrin
Superior Court of New Hampshire
In equity. The bill stated the following case. On the 20th day of March, A. D. 1798, Josiah Downing,, the elder, of Newington, was seized of certain real estate,, situated in Newington, with a house and buildings thereon, in which he resided. On that day he made his will, by which he devised to his son Josiah, in fee, all his land in Newington.
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In equity. The bill stated the following case. On the 20th day of March, A. D. 1798, Josiah Downing,, the elder, of Newington, was seized of certain real estate,, situated in Newington, with a house and buildings thereon, in which he resided. On that day he made his will, by which he devised to his son Josiah, in fee, all his land in Newington. He then made certain bequests to his other children, and then followed this clause: “ My will is that if my son, Josiah Downing, should not marry and have lawful issue of his own body, after his death all the real estate that I have given him shall be…
1Opinion of the CourtGilchrist, C. J.
The question in this ease is, whether the limitation over, after the death of Josiah, is void as an executory devise, on account of the contingency on which it is to take place being too remote. Is the limitation over to take effect only in case of the indefinite failure of the issue of Josiah, that is, in the words of the statute de donis, if his issue shall fail, or is it to take effect, if he shall *84have lawful issue living at the time of his death ? If the former, it is void as an executory devise, and Josiah was tenant in tail. If the latter, it is a good executory devise, and upon the…
2Cases cited4 opinions
- Hamilton v. CummingsNew York Court of Chancery · 1815
- Jackson ex dem. Brewster v. BullNew York Supreme Court · 1813
- Executors of Moffat v. StrongNew York Supreme Court · 1813
- Hall v. ChaffeeSuperior Court of New Hampshire · 1843