Kelsey v. Deyo
New York Supreme Court
, Error from the Court of Common Pleas of the county of Ulster. The action in the Court below Was assumpsit by Deyo and wife against Kelsey, for a legacy bequeathed to them by the will of Nathaniel Kelsey, deceased, and alleged in the declaration to have been charged on his real éstate devised to the defendant below.
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, Error from the Court of Common Pleas of the county of Ulster. The action in the Court below Was assumpsit by Deyo and wife against Kelsey, for a legacy bequeathed to them by the will of Nathaniel Kelsey, deceased, and alleged in the declaration to have been charged on his real éstate devised to the defendant below. The declaration averred that the defendant entered into possession of the premises devised to him by the will, thereby became liable to pay, and, in consideration thereof, promiesd to pay the plaintiffs, the legacy so charged. Plea, non-assumpsit. On the trial, the will of…
1Opinion of the Court
Curia
ner Savage, Ch. J.
Two questions are presented to ft, for their decision :
1. W nether an action at law lies for a legacy charged upon land ?
2. Whether, from the whole will, it was clearly the intention of the testator to discharge his personal estate from the payment of the legacy in question, and charge it upon the realty ?
The first question was not directly raised on the argument, though we were referred to several English cases, which question the plaintiff’s right to a remedy at law. It has been settled, that without a promise to pay a legacy charged upon the realty, an action does…
2Cases cited2 opinions
- Van Orden v. Van OrdenNew York Supreme Court · 1813
- Beecker v. BeeckerNew York Supreme Court · 1810
3Cited by8 opinions
- Wier v. SimmonsWisconsin Supreme Court · 1882
- Hoes v. Van HoesenNew York Court of Chancery · 1846
- Hoes and Others v. . Van HoesenNew York Court of Appeals · 1847
- Leavitt v. WoosterSuperior Court of New Hampshire · 1844
- Perry v. HaleSupreme Court of New Hampshire · 1860
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