Cutter v. Doughty
New York Supreme Court
This was an action of ejectment tried at the New-York circuit in March, 1838, before the Hon. Ogden Edwards one of the circuit judges. The plaintiffs, as the children (and the husbands of some of the children) of Margaret Grenzebaeh, claimed to recover one fifth of the premises in question, devised by the last will and testament of Gasper Somier, to the children of his daughter Barbara if she should have any.
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This was an action of ejectment tried at the New-York circuit in March, 1838, before the Hon. Ogden Edwards one of the circuit judges. The plaintiffs, as the children (and the husbands of some of the children) of Margaret Grenzebaeh, claimed to recover one fifth of the premises in question, devised by the last will and testament of Gasper Somier, to the children of his daughter Barbara if she should have any. The jury found a special verdict as follows: “ That Samler, by his will dated in 1799, devised to Susannah his wife, his farm in the city of New-York, with the stock, farming tools,…
1Opinion of the CourtCowen, J.
By the Court, It is too late to contend that a devise to the survivor or survivors of another, after his death without lawful issue, or any other clause of equivalent import, is void as being a limitation upon an in*518definite failure of issue. The word survivor, or the 'like, qualifies the technical or primary meaing of the words dying without issue: being considered the same as if the testator had added, living at the time of his death. Paterson, v. Ellis, 11 Wend. 280, 292, et seq. and the cases there cited by Savage, C. J.
The question to be decided arises on the last clause in the will; and…
2Cited by15 opinions
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