Legal Opinion

Close v. Van Husen

New York Supreme Court

Decided September 4, 1854PublishedCited by 4 opinions

THIS was an appeal from a. judgment entered upon the report of a referee. Hugh McMasters died in Sept. 1837, leaving six children, and the children of two sons, Hugh and Thomas, who were then dead, and possessed of a farm and personal estate. By his will he gave to his wife, absolutely, all the personal property which belonged to her when he married her ; also the use of all his real and personal estate, during life ; she paying taxes and rents upon a certain lease lot.

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THIS was an appeal from a. judgment entered upon the report of a referee. Hugh McMasters died in Sept. 1837, leaving six children, and the children of two sons, Hugh and Thomas, who were then dead, and possessed of a farm and personal estate. By his will he gave to his wife, absolutely, all the personal property which belonged to her when he married her ; also the use of all his real and personal estate, during life ; she paying taxes and rents upon a certain lease lot. He then added “ and at her death, or as soon after as my executors shall deem best for my heirs hereinafter named, to sell…

1Opinion of the Court

*508 By the Court,

Hand, P. J.

If it was not competent for the defendant to show the paroi agreement made between him and J ames McMasters at the time the note was given, still I think the judgment must be affirmed. The mortgage given by James to the plaintiff was a transfer, pro tanto, of his interest in the real estate of his grandfather, subject to redemption; or rather, a valid lien thereon, subject to the execution of the power of sale by the executors; and entitling the plaintiff, in case of a sale, to a preference over any claim arising out of the verbal promise to one of the executors.

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2Cases cited2 opinions

  1. In re JohnNew York Supreme Court · 1839
  2. Smith v. KearneyNew York Court of Chancery · 1848

3Cited by4 opinions

  1. In re the Estate of EwaldNew York Surrogate's Court · 1940
  2. In re the Estate of MacnealNew York Surrogate's Court · 1940
  3. In re the Estate of GrifenhagenNew York Surrogate's Court · 1940
  4. Smith v. MurrayNew York Surrogate's Court · 1882

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