Gallavan v. Gallavan
Appellate Division of the Supreme Court of the State of New York
Appeal by the plaintiff, Matthew Gallavan, from an interlocutory judgment óf the Supreme Court in favor of the defendants, James Gallavan and another, entered in the office of the clerk of the county of Chemung on the 15th day of June, 1900, upon the decision of the court , rendered after a trial at the Chemung Special Term sustaining a demurrer to the complaint. . The action is in partition.
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Appeal by the plaintiff, Matthew Gallavan, from an interlocutory judgment óf the Supreme Court in favor of the defendants, James Gallavan and another, entered in the office of the clerk of the county of Chemung on the 15th day of June, 1900, upon the decision of the court , rendered after a trial at the Chemung Special Term sustaining a demurrer to the complaint. . The action is in partition. The complaint alleges a title in the parties as heirs at law through failure of a testator’s will to devise ' the lands sought to be partitioned. The question brought up by, the demurrer is this: Where…
1Opinion of the Court
Kellogg, J.:
The contention of the appellant is that the land descended to the heirs because the intention of the testator, as expressed in the will, is that a portion of the land should not go to the residuary devisees, and that is made manifest by the testators devise of a portion of it to each of three other children; that the failure of the devise because of inability to locate the lots does not operate to affect the intention, and this intention must be controlling, to the extent, at least, of preventing the land from passing, by the residuary clause of the will, to the residuary…
2Cases cited6 opinions
- Riker v. . CornwellNew York Court of Appeals · 1889
- Moffett v. . ElmendorfNew York Court of Appeals · 1897
- Cruikshank v. . Home for the FriendlessNew York Court of Appeals · 1889
- Youngs v. . YoungsNew York Court of Appeals · 1871
- In Re the Judicial Settlement of the Accounts of AllenNew York Court of Appeals · 1896
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3Cited by3 opinions
- In re the Probate of a Paper Propounded as Last Will & Testament of TurnerAppellate Division of the Supreme Court of the State of New York · 1911
- In re the Judicial Settlement of the Account of Proceedings of Lincoln Trust Co.New York Surrogate's Court · 1912
- In re the Probate of a Paper Propounded as Last Will & Testament of TurnerAppellate Division of the Supreme Court of the State of New York · 1911