Wallace v. . Diehl
New York Court of Appeals
Appeal by plaintiffs and by the defendant appellant from a final judgment entered May 3, 1910, upon an order of the Appellate Division of the Supreme Court in the second judicial department, which affirmed an interlocutory judgment of Special Term in an action for the construction of certain clauses of the will of Margaretta M. Diehl, deceased. The facts, so far as material, are stated in the dissenting opinion.
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Appeal by plaintiffs and by the defendant appellant from a final judgment entered May 3, 1910, upon an order of the Appellate Division of the Supreme Court in the second judicial department, which affirmed an interlocutory judgment of Special Term in an action for the construction of certain clauses of the will of Margaretta M. Diehl, deceased. The facts, so far as material, are stated in the dissenting opinion. The word “heirs” in the 11th paragraph of the will was used in the sense of issue or descendants. (Matter of Cramer, 59 App. Div. 553; Bundy v. Bundy, 38 N. Y. 419; Johnson v.…
1Opinion of the Court
Cullen, Ch. J.
I concur in the opinion of my brother Collin, save in one respect. The courts below have held that the power of appointment given in the eleventh clause of the testatrix’s will to Mrs. Wallace “to give, devise and bequeath upon her death by Last Will and Testament duly executed, to such of my heirs as she may prefer,” may be exercised in favor of any issue or descendant of the testator. I can find no authority in the decided cases for the extension of the term “heir” to include issue or descendants who are not heirs. Not one of the authorities cited in support of that…
2Cases cited15 opinions
- Scott v. . GuernseyNew York Court of Appeals · 1871
- Livingston v. . GreeneNew York Court of Appeals · 1873
- Delaney v. . McCormackNew York Court of Appeals · 1882
- Taggart v. . MurrayNew York Court of Appeals · 1873
- Thurber v. . ChambersNew York Court of Appeals · 1876
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3Cited by8 opinions
- In Re Accounting of Guaranty Trust Co.New York Court of Appeals · 1938
- Jenkins v. . LambethSupreme Court of North Carolina · 1916
- Baugham v. . Trust Co.Supreme Court of North Carolina · 1921
- In Re Estate Of Florence Voelzel Kerr, A/K/A Florence V. Kerr, Deceased. Ralph L. Atchison, Administrator, C.T.A.Court of Appeals for the D.C. Circuit · 1970
- Atchison v. HallCourt of Appeals for the D.C. Circuit · 1970
3 more not listed; retrieve them via the Exa API.