Gaylord v. Barnes
Appellate Division of the Supreme Court of the State of New York
Submission of a controversy, upon an agreed statement of facts, pursuant to section 1279 of the Code of Civil Procedure. One Erastus Barnes died intestate in 1856 seized and possessed of certain real estate. He left a widow, Nancy Barnes, who has since died, and three. children, Nancy C. Barnes, now Nancy C. Smith, Morgan L. Barnes and Erastus B. Barnes, as his only heirs at law.
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Submission of a controversy, upon an agreed statement of facts, pursuant to section 1279 of the Code of Civil Procedure. One Erastus Barnes died intestate in 1856 seized and possessed of certain real estate. He left a widow, Nancy Barnes, who has since died, and three. children, Nancy C. Barnes, now Nancy C. Smith, Morgan L. Barnes and Erastus B. Barnes, as his only heirs at law. In 1873 the said Erastus B. Barnes and Morgan L. Barnes conveyed all their title and interest in said real estate to said Nancy C. Barnes “ and to her heirs and assigns forever.” The deed contained the following…
1Opinion of the Court
Chester, J.:
There are several reasons why the plaintiff’s claim must be sustained: . .
First. The proviso giving James Smith a life estate in the property - never took effect, because that estate was conditioned . upon the death of Nancy C. Barnes prior to his death, and he died leaving her surviving.
Second. The words “ with this provision ” in the clause claimed to operate as a limitation, according to ordinary grammatical construction, refer to a single provision following them and modify all that follows. James Smith having died previous to his wife, Nancy C., none of the provisions ever…
2Cases cited5 opinions
- Campbell v. . BeaumontNew York Court of Appeals · 1883
- Jackson ex dem. Brewster v. BullNew York Supreme Court · 1813
- Duryea v. . MayorNew York Court of Appeals · 1875
- Ripley v. LarmouthNew York Supreme Court · 1865
- Harriot v. HarriotAppellate Division of the Supreme Court of the State of New York · 1898
3Cited by3 opinions
- Horton v. Niagara, Lockport & Ontario Power Co.Appellate Division of the Supreme Court of the State of New York · 1931
- City of Rome v. VescioAppellate Division of the Supreme Court of the State of New York · 1977
- In re the City of New YorkNew York Supreme Court · 1968