McLean v. Macdonald
New York Supreme Court
Ejectment, brought by the plaintiffs as the executors of Hester Walgrove deceased. The jury, by a special verdict, found that Samuel Walgrove, by his last will, devised to his wife Hester all his real estate, to be at her entire disposal, but should any part thereof remain unsold at the time of her decease, he gave the same to his children, to be equally divided among them.
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Ejectment, brought by the plaintiffs as the executors of Hester Walgrove deceased. The jury, by a special verdict, found that Samuel Walgrove, by his last will, devised to his wife Hester all his real estate, to be at her entire disposal, but should any part thereof remain unsold at the time of her decease, he gave the same to his children, to be equally divided among them. That Hester died, without having disposed of that real estate; and that a portion thereof was conveyed, after her death, to the defendant by the children of Samuel Walgrove, who claimed to take under the devise over. That…
1Opinion of the Court
By the Court, Edmonds, J.
The devise to Hester Walgrove, giving to her the absolute disposal of the property devised, gave to her the fee. The limitation over after her death was not good as a contingent remainder; because such a remainder cannot be limited on a prior estate in fee simple absolute. (Pells v. Brown, Cro. Jac. 590. Preston v. Fennell, Willes, 164. 1 Sandf. Ch. Rep. 276.) It was not good as an executory devise, because it could be prevented or destroyed by an alteration of the estate out of, or after which, it would arise. (Cruise’s Dig. tit. Devise, ch. 17, § 13. Jackson v.…
2Cases cited1 opinion
- Jackson ex dem. Brewster v. BullNew York Supreme Court · 1813
3Cited by4 opinions
- Bean v. KenmuirSupreme Court of Missouri · 1885
- Schick v. WolfAppellate Division of the Supreme Court of the State of New York · 1924
- Heermans v. . RobertsonNew York Court of Appeals · 1876
- In re the Estate of WhitingNew York Surrogate's Court · 1933