Kelly v. . Kelly
New York Court of Appeals
Appeal from judgment of the General Term of the Supreme Court in the third judicial department, entered upon a case submitted under section 372 of the Code. (Reported below, 5 Bans., 443.) The submission was for the purpose of obtaining a construction of the will of James Kelly, late of the city of Albany, who died December 20, 1852, leaving certain real estate in said city. The clauses of the will in question are as follows: “ Second.
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Appeal from judgment of the General Term of the Supreme Court in the third judicial department, entered upon a case submitted under section 372 of the Code. (Reported below, 5 Bans., 443.) The submission was for the purpose of obtaining a construction of the will of James Kelly, late of the city of Albany, who died December 20, 1852, leaving certain real estate in said city. The clauses of the will in question are as follows: “ Second. 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 die possessed, share and…
1Opinion of the Court
Reynolds, C.
It seems obvious that the general intent of the testator was, to give to his two children, if they survived him, all his estate in fee simple, but in attempting to provide for possible contingencies his will is calculated to provoke some contention, by reason of events happening since his death. The devise and bequest in the second clause of the will is absolute and quite sufficient to pass a fee, but in the fourth clause it is supposed to be qualified by the provision that “ in case of the death of either of my said children, I devise my whole estate to the survivor; and in case…
2Cases cited2 opinions
- Moore v. LyonsNew York Supreme Court · 1840
- Converse v. KelloggNew York Supreme Court · 1850
3Cited by26 opinions
- Vanderzee v. SlingerlandNew York Court of Appeals · 1886
- Fowler v. DuhmeIndiana Supreme Court · 1896
- Meacham v. GrahamTennessee Supreme Court · 1897
- In re Moran's WillWisconsin Supreme Court · 1903
- Kohtz v. EldredIllinois Supreme Court · 1904
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