Helmer v. Shoemaker
New York Supreme Court
This was an action of ejectment, tried at the Onondaga circuit, in September, 1837, before the Hon. Daniel Moseley, one of the circuit judges. Both parties claimed under the will of Rudolph R. Shoemaker, which was made on the 7th June, 1827. By it, the testator gave all Ms estate, real and personal, of which he was then or should be in possession at the time of his decease, to his toife Margaret, without any words of limitation.
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This was an action of ejectment, tried at the Onondaga circuit, in September, 1837, before the Hon. Daniel Moseley, one of the circuit judges. Both parties claimed under the will of Rudolph R. Shoemaker, which was made on the 7th June, 1827. By it, the testator gave all Ms estate, real and personal, of which he was then or should be in possession at the time of his decease, to his toife Margaret, without any words of limitation. The will also contained a clause in these words: “ I also will and bequeath to my daughter Charity Helmer, the wife of Michael Helmer, all the avails of the property…
1Opinion of the Court
By the Court,
Cowen, J.
The will was inartificially drawn in every respect. It is well settled that the devise of all the testator’s real and personal estate to Margaret, was sufficient to carry a fee in the land, if there had been nothing else in the will shewing that such was not the intention. Technically, in order to carry a fee, the usual words of limitation “ her heirs,” &c., would have been necessary. But in case of wills, where the intent to devise a fee is made apparent, either by equivalent words or other parts of the will indicating that such was the probable intent, this has been…
2Cases cited1 opinion
- Ide v. IdeMassachusetts Supreme Judicial Court · 1809
3Cited by18 opinions
- Van Horne v. . CampbellNew York Court of Appeals · 1885
- Mulvane v. RudeIndiana Supreme Court · 1896
- Little v. GilesNebraska Supreme Court · 1889
- Livingston v. . MurrayNew York Court of Appeals · 1877
- Martin v. BallouNew York Supreme Court · 1852
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