Cornell v. Child

Headnote

Cornell v. Child, 170 App. Div. 240 , affirmed.

Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered December 17, 1915, affirming a judgment in favor of plaintiff and defendants, respondents, entered upon a decision of the court on trial at Special Term. The action was for partition of real property of which one Ella L. Cornell died seized. The rights of the descendants of three sisters, Sarah, Elizabeth and Ann Theall, are /involved. William Cornell first married Sarah, by whom he had two sons, William T. Cornell (who in 1907 deceased, leaving as only issue Lillian R. Child and Florence C. Kent) and Edwin T. Cornell, the plaintiff herein. After Sarah’s death, William Cornell married as his second wife Elizabeth Theall, by whom he had three children, Fred L. Cornell, Frank S. Cornell and a daughter, Ella L. Cornell. Elizabeth Cornell was seized of the lands here in question. She died in 1892, intestate, so that the lands subject of this suit for partition descended to her three children aforesaid, each having a third interest, as tenant in common. These children have now all died, Ella’s interest became increased by devise and descent from her brothers. .By -lapse of certain provisions of the will of Ella Cornell, a case of partial intestacy has arisen as to one-half of her residuary estate. The respondents claim that this inheritance passed to her brother of the half blood, plaintiff Edwin T. Cornell, with her nieces of the half blood, Lillian R. Child and Florence C. Kent, daughters of the deceased half brother William T. Cornell. The descendants of Ann Theall, by her marriage with Thomas Purdy, also claim an equal share in the property as to which Ella L. Cornell died intestate, The qourt

at Special Term found and determined that the plaintiff, Edwin T. Cornell, and the defendants Lillian R. Child and Florence C. Kent inherit the property which descended to Ella Cornell directly from her ancestor Elizabeth Cornell, as to which Ella Cornell died intestate, through their kinship of the half blood, under section 90 of the Decedent Estate Law.