Reports of Cases Decided in the Court of Appeals of the State of New York Volume 121 (Paperback)

This historic book may have numerous typos and missing text. Purchasers can download a free scanned copy of the original book (without typos) from the publisher. Not indexed. Not illustrated. 1890 Excerpt: ...v. Patctten (49 Hun. 270), reversed. (Argued May 5, 1890; decided June 3, 1890.) Appeal from judgment of the General Term of the Supreme Court in the second judicial department, entered upon an order made June 25, 1888, which affirmed a judgment entered upon a decision of the court on trial at Special Term. Opinion of the Court, per Finch, J. This was an action for the construction of a devise in the will of Henry Patchen, deceased. The facts, so far as material, are stated in the opinion. William S. Cog-well for appellant. The respondents have no right or interest in the property held by the trustee, as devisees under the will. (Barber v. Barker, 3 M. & C. 193.) A devise to a class takes effect only in favor of those who constitute the class at the time designated for possession. (Mayem v. Field 4S K Y. iliS; Hill v. It. Bank, 45 K II. 271; Vlner v. Frauds, 2 Brown's Ch. 658; Jenkins v. Frazer, 4 Paige, 47; Campbell v. Rawdon, 18 N. Y. 412; CarmicJiael v. Carmichael, 4 Keyes, 340; 7iWw v. Lonllard, 85?T. Y. 177.) It was not the testator's intention that the grandchildren should be devisees. (Croxlnj v. Wendell, 6 Paige, 548; Tier v. Pennell, 1 Edw. Ch. 354; Hawaii v. Carmc, 1 Paige, 328; Palmer v. Horn, 84 N." Y. 516; Wylie v. Lock-wood, 86 id. 297; Guernsey v. Guernsey, 36 id. 267; Low v. Harmony, 72 id. 408; Carmiehael v. Carmichael, 4 Keyes, 346; Shannon v. Pickell, 28 N. Y. S. E. 464; In re Well, 113 N. Y. 396.) Even if the court should consider the case of In re Brown controlling here, the judgment below must be modified. (In re Brown, 93 N. Y. 300.) WUMani C'. De Witt for respondents. If the language is capable of any construction which would permit the issue of a deceased son to participate in the remainder limited upon his mother's li...