Cole v. Niles
New York Supreme Court
Appeal by defendants from a judgment at the special term in favor of the plaintiff. The action was brought by Mary E. Cole, executrix,- etc., of Edgar B. Cole, deceased, against John M. Niles and another executors, etc., of Dan Niles, deceased, to recover the amount of a legacy.
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Appeal by defendants from a judgment at the special term in favor of the plaintiff. The action was brought by Mary E. Cole, executrix,- etc., of Edgar B. Cole, deceased, against John M. Niles and another executors, etc., of Dan Niles, deceased, to recover the amount of a legacy. Dan Niles made his will April 6, 1870, containing the following provision: “ I will and bequeath to my son-in-law, who married my daughter 'Wealthy, now deceased, of Waterford, the sum of $1,500, to be paid to him at my decease by my executors, upon the express condition that the said Edgar Cole shall not render any…
1Opinion of the CourtCountryman, J.
This legacy must be regarded as lapsed, unless it can be sustained as a provision for the payment of a *453debt due from the testator to the deceased legatee. As it does not fall within the exceptions created by the Revised Statutes (2 R. S. 66, § 52) saving certain classes of legacies from lapsing, the question must be determined under the rule at common law. The provision in question is in terms a mere proposition to adjust a claim held by the legatee against the testator, upon the basis of the legacy, which is directed “ to be paid * * upon the express condition that he shall not render any…
2Cases cited1 opinion
- Orton v. OrtonNew York Court of Appeals · 1867