Mellen v. . Mellen
New York Court of Appeals
Appeal from judgment of the General Term of the Supreme Court in the first judicial department, entered upon an order made at the May term, 1891, which reversed an order of Special Term overruling a demurrer to the complaint herein, and an interlocutory judgment entered thereon, and which sustained the demurrer and directed judgment in favor of defendants. This action was brought for the construction of the will of Aimer Mellen, deceased, and for other relief.
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Appeal from judgment of the General Term of the Supreme Court in the first judicial department, entered upon an order made at the May term, 1891, which reversed an order of Special Term overruling a demurrer to the complaint herein, and an interlocutory judgment entered thereon, and which sustained the demurrer and directed judgment in favor of defendants. This action was brought for the construction of the will of Aimer Mellen, deceased, and for other relief. Tiie plaintiff is the widow of Abner Mellen, Jr., deceased, who died on the <>th day of March, 1890. Abner Mellen, Jr., was the son of…
1Opinion of the Court
Andrews, Ch. J.
The action is not maintainable as an action for the construction of the will of Abner Mellen. The validity of the power of sale given to the executors, even if any doubt could be entertained in respect to it, is a question for a court of law as distinguished from a court of equity. It is a question primarily of legal and not of equitable cognizance. There is no inherent power vested in courts of equity in the construction of devises, as a distinct and independent branch of jurisdiction, but they exercise this jurisdie tion only as incident to their jurisdiction over trusts.…
2Cases cited5 opinions
- Monarque v. . MonarqueNew York Court of Appeals · 1880
- Hetzel v. . BarberNew York Court of Appeals · 1877
- Bowers v. SmithNew York Court of Chancery · 1843
- Bailey v. . BriggsNew York Court of Appeals · 1874
- Crittenden v. . FairchildNew York Court of Appeals · 1869
3Cited by62 opinions
- Washbon v. . CopeNew York Court of Appeals · 1895
- Trask v. . SturgesNew York Court of Appeals · 1902
- Lewis v. . HoweNew York Court of Appeals · 1903
- Bank of Ukiah v. RiceCalifornia Supreme Court · 1904
- Griffith v. WittenSupreme Court of Missouri · 1913
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