In re Probate of the Last Will & Testament of Miller
Appellate Division of the Supreme Court of the State of New York
Appeal by Warren F. Darrow and others from so much of a decree of the Surrogate’s Court of the county of Saratoga, entered in said Surrogate’s Court on the 8th day of February, 1896, construing the last will and testament of Benjamin F. Miller, deceased, as provides that a gift over of- the testator’s estate to Annie Darrow and Edith Darrow is invalid and of no effect, and that the next of kin of said deceased are entitled to receive his personal estate, the same in all…
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Appeal by Warren F. Darrow and others from so much of a decree of the Surrogate’s Court of the county of Saratoga, entered in said Surrogate’s Court on the 8th day of February, 1896, construing the last will and testament of Benjamin F. Miller, deceased, as provides that a gift over of- the testator’s estate to Annie Darrow and Edith Darrow is invalid and of no effect, and that the next of kin of said deceased are entitled to receive his personal estate, the same in all respects as though the testator had died intestate. The will of Benjamin F. Miller was executed on the 30th day of November,…
1Opinion of the Court
Putnam, J.:
The respondents rely upon the well-established doctrine that “ an estate in fee, created by a will, cannot be cut down or limited by a. subsequent clause, unless it is as clear and decisive as the language, of the clause which devises the estate.” (Byrnes et al. v. Stilwell et al., 103 N. Y. 453; Benson et al. v. Corbin et al., 145 id. 351; Washbon et al. v. Cope et al., 144 id. 287; Roseboom v. Roseboom et al., 81 id. 356.)
As in the will under consideration there was a devise in fee to the daughter of the testator, they insist that the subsequent clause of the will by which the…
2Cases cited11 opinions
- Vanderzee v. SlingerlandNew York Court of Appeals · 1886
- Brown v. . ClarkNew York Court of Appeals · 1879
- Avery v. . EverettNew York Court of Appeals · 1888
- Byrnes v. . StilwellNew York Court of Appeals · 1886
- Norris v. . BeyeaNew York Court of Appeals · 1855
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3Cited by5 opinions
- In re the Estate of JohnsonNew York Surrogate's Court · 1929
- In re Proving the Last Will & Testament of CampbellNew York Surrogate's Court · 1901
- In re the Estate of VauseNew York Surrogate's Court · 1934
- In re the Estate of BartletNew York Surrogate's Court · 1921
- In re the Estate of VosburghNew York Surrogate's Court · 1931