Downer v. . Church
New York Court of Appeals
Appeal from, an order of the Supreme Court, at General Term in the eighth district, affirming a judgment in favor of the plaintiff, entered on the report of a referee. The action was brought to compel the specific performance of a contract between the plaintiff and the defendant Loren Church. It appears, from the facts found by the referee, that Eoswell Downer died in January, 1857, leaving a widow, but no child.
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Appeal from, an order of the Supreme Court, at General Term in the eighth district, affirming a judgment in favor of the plaintiff, entered on the report of a referee. The action was brought to compel the specific performance of a contract between the plaintiff and the defendant Loren Church. It appears, from the facts found by the referee, that Eoswell Downer died in January, 1857, leaving a widow, but no child. He left certain real estate, consisting of a dwelling-house and about five acres of land, situate at Somerset, in Hi agar a county, of the value of about $1,000, and personal estate…
1Opinion of the Court
Leonard, C.
There can be no doubt of the validity of the agreement to compromise the hostile and conflicting claims of the plaintiff and defendant, as between themselves. The defendant Church argues that the property devised to him is charged with a trust for the maintenance of the widow of Boswell Downer, the deceased testator, and hence that he cannot legally convey it as he had agreed. The provision of the will, as stated in the case, is that the property is devised to Loren Church, subject to the support and maintenance of the widow. This language does not create a trust, it creates an…
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