Smith v. Smith — 15 N.Y. St. Rep. 893

Majority

p. 893

Nellie R. Smith, Resp’t, v. Sarah C. Smith et al., App’lts.

(Supreme Court, General Term, Second Department,

Filed May 14, 1888.)

Headnote

Wills—Construction on devise.

The will of a testator, after the payment of his debts, devised certain real property to one of his daughters, subject, however, to the condition that she do fully pay and discharge all my funeral expenses, and, also, pay to my daughter, “ the sum of fifty (50) dollars, all such payments to be made within sixty days after my decease.” Held, that the real estate devised, was not charged with the testator’s debts to the relief of other lands, and that the payment of the debts was not a condition precedent to the vesting of the title and enjoyment of the possession of the lands, and that the premises devised were not devised upon a condition, but charged with the funeral expenses, and the legacy of fifty dollars.

Appeal from a judgment rendered by a circuit in Westchester county after a trial without a jury.

B. E. & A. J. Prime & Burns, for resp’t; J. M. Hunt, for app’lts.

—This is an action of ejectment and the-plaintiff makes title to the premises, under the last will and testament of her father, by which he devised to her the land in question, to have and to hold to herself, her heirs and assigns forever, subject to the condition that she fully pay and discharge all my funeral expenses, and also-pay to my daughter Kat-y A. Coupe, the sum of fifty dollars, all such payments to be made within sixty days after my decease.

The trial court decided that the debts were not charged' upon the real estate devised to the plaintiff, to the relief of tlie other lands, and that the payment of the debts was not-a condition precedent to the vesting of the title and the enjoyment of the possession of the lands, and that the premises in question were not devised to the plaintiff on condition, but were charged with the funeral expenses and the legacy of fifty dollars.

We concur in these conclusions, and the judgment should be affirmed, with costs.