Smith v. . Robertson
New York Court of Appeals
Appeal from order of the General Term of the Supreme Court, in the second judicial department, made February 15, 1881, which reversed a judgment in favor of defendant, entered upon a decision of the court on trial without a jury, and granted a new trial. (Reported below, 24 Hun, 210.) This action was brought to recover possession of two lots in the village of Middletown, Orange county, of which John J. Scott died seized.
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Appeal from order of the General Term of the Supreme Court, in the second judicial department, made February 15, 1881, which reversed a judgment in favor of defendant, entered upon a decision of the court on trial without a jury, and granted a new trial. (Reported below, 24 Hun, 210.) This action was brought to recover possession of two lots in the village of Middletown, Orange county, of which John J. Scott died seized. In 1862 he made a will by which his executor was authorized to sell all his real and personal estate, and pay the proceeds to his widow. In April, 1864, he had a child born,…
1Opinion of the CourtBapallo, J.
We are of the opinion that on the death of John J. Scott, the testator, the real estate in controversy descended to his infant daughter, under the provision of 2 R. S. 65, § 49, in the same manner as it would have descended if the father had died intestate, and that the infant does not take under the will, or subject to any of its provisions.
The statute, instead of declaring the entire will revoked by the subsequent birth of issue for whom no provision is made, renders, it inoperative as to that portion of the testator’s estate which, if he had died intestate, would have descended, or been…
2Cited by21 opinions
- Newman v. WatermanWisconsin Supreme Court · 1885
- Obecny v. GoetzAppellate Division of the Supreme Court of the State of New York · 1907
- Matter of MurphyNew York Court of Appeals · 1895
- Van Wickle v. Van WickleNew Jersey Court of Chancery · 1899
- Chicago, B. & Q. R. Co. v. WashermanUnited States Circuit Court · 1885
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