Smith v. Soper
New York Supreme Court
Appeal from a judgment, entered upon the trial of this action by the court without a jury. The action was brought to enforce the charge and lien of the ■debts of Isaac B. Soper, deceased, against the real estate of which he died seized. The testator died on January 24, 1876, and his will was proved and letters testamentary thereon issued to the defendant Phebe, his widow, in the February following. The will, after its .formal beginning, proceeded as follows, viz.: “ First.
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Appeal from a judgment, entered upon the trial of this action by the court without a jury. The action was brought to enforce the charge and lien of the ■debts of Isaac B. Soper, deceased, against the real estate of which he died seized. The testator died on January 24, 1876, and his will was proved and letters testamentary thereon issued to the defendant Phebe, his widow, in the February following. The will, after its .formal beginning, proceeded as follows, viz.: “ First. After all my lawful debts are paid and discharged.I give and bequeath,” etc. He then gave certain lots to his children,…
1Opinion of the Court
Piíatt, J.:
There was a general provision in the will of Isaac B. Soper that “ after all my debts are paid and discharged I give and devise.” The devisee was defendant Phebe H. Soper, who was also executrix. Assuming that the debts were a charge upon the real estate, it was, nevertheless, subject to the statutory provisions for their ascertainment, viz., that they should be duly presented under notice published by the executrix under the order of the surrogate. The will was probated and letters issued February 15, 1876.
There is a broad distinction between a general clause in a will for the…
2Cases cited1 opinion
- Jewett v. KeenholtsNew York Supreme Court · 1853