Madigan v. Burns
Supreme Court of New Hampshire
Petition for partition. Facts agreed. John Bnrns and his son Patrick once owned each an undivided half of the premises. At the death of Patrick in--, his half, subject to the right of dower of his widow, Nancy, fell to his daughter, Mary S. Madigan, who died in 1869, leaving surviving her husband the plaintiff, their only child, Joseph Madigan, and her mother, Nancy, and a will as follows: “ (1) I give, bequeath, and devise to my mother, Nancy Burns, one half of all the…
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Petition for partition. Facts agreed. John Bnrns and his son Patrick once owned each an undivided half of the premises. At the death of Patrick in--, his half, subject to the right of dower of his widow, Nancy, fell to his daughter, Mary S. Madigan, who died in 1869, leaving surviving her husband the plaintiff, their only child, Joseph Madigan, and her mother, Nancy, and a will as follows: “ (1) I give, bequeath, and devise to my mother, Nancy Burns, one half of all the rents, profits, and income of all my property, real, personal, and mixed, for and during her natural life, remainder to my…
1Opinion of the CourtCarpenter, J.
The defendant Nancy claims that the third clause of the will is a bar to the plaintiff’s right of partition. Whether the language of this clause should be construed as advisory or obligatory — as a mere request (Merrill v. Emery, 10 Pick. 507, 512) — or as a condition, we need not inquire. Assuming, as being the view most favorable to the defendants, that the clause constitutes a condition the breach of which would cause a forfeiture of the estate devised, the heir-at-law of the testatrix can alone take advantage of or enforce the forfeiture. The plaintiff is -her sole heir. A forfeiture of…
2Cases cited1 opinion
- Newkerk v. NewkerkNew York Supreme Court · 1805
3Cited by1 opinion
- Hale v. JaquesSupreme Court of New Hampshire · 1898