McGowan v. McGowan
The Superior Court of New York City
Appeal from a judgment at special term, sustaining a demurrer to the complaint. The suit was for the partition of certain real estate in the city of New York, which had belonged to Bartholomew McGowan, deceased. The plaintiffs were two of the children of the deceased, who claimed to be entitled, as heirs at law, to two sevenths of the estate. The defendants were the widow and the remaining five children of the deceased.
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Appeal from a judgment at special term, sustaining a demurrer to the complaint. The suit was for the partition of certain real estate in the city of New York, which had belonged to Bartholomew McGowan, deceased. The plaintiffs were two of the children of the deceased, who claimed to be entitled, as heirs at law, to two sevenths of the estate. The defendants were the widow and the remaining five children of the deceased. The complaint admitted that the deceased had made a will, duly executed and published, devising all his real estate, but insisted that the devise was absolutely void, as…
1Opinion of the CourtBy the Court. Duer, J.
The widow in this case took the whole estate subject to the maintenance and education of the children, as a charge, which a court of equity might enforce *59(2 Hare, 607. 10 Simons, 293. 8 L. and Eq. R., p. 53), but which created no trust under the provisions of the R. S. She was not bound to apply the whole rents and profits to the use of the children, and hence the case is not covered by sub. 3, § 55 in the title of uses and trusts (1 R. S., p. 328), and it is only an express trust created under this subdivision, which suspends at all the power of alienation. Under the provisions of this will…
2Cited by2 opinions
- Griffen v. FordThe Superior Court of New York City · 1857
- Eells v. LynchThe Superior Court of New York City · 1861