Masterson v. Townshend

• Decision Date: 02 December 1890
• Citation: 25 N.E. 928,123 N.Y. 458
• Parties: MASTERSON v. TOWNSHEND et al.
• Court: New York Court of Appeals Court of Appeals

123 N.Y. 458

25 N.E. 928

MASTERSON

v.TOWNSHEND et al.

Court of Appeals of New York.

Dec. 2, 1890.

Appeal from superior court of New York city, general term.

This was an action of ejectment, and the complaint, after alleging the seizure of certain real estate by William H. Masterson and Peter Masterson, as tenants in common, sets forth William's death, and the devise in his will of the property to his executor, upon a certain trust during his wife's life or widowhood. It alleges that no other disposition of the premises was made, and that the widow has remarried. It is made to appear that testator left no children, and that plaintiff is one of his heirs at law, and, as such, he claims to be seized of a certain undivided interest in the property, and to be entitled to an immediate possession thereof. The defendants demurred to the complaint as not stating facts sufficient to constitute a cause of action, but plaintiff had judgment overruling the demurrer, upon which a final judgment was entered, and the general term of the superior court of the city of New York have affirmed that judgment. The defendants thereupon appealed to this court.

Theron C. Strong, for appellants.

George Wilcox, for respondent.

GRAY, J., ( after stating the facts as above.)

In order that plaintiff's right to the possession of the premises in question, and to the relief he demands, shall appear well-founded in law, his complaint must disclose, on its face, a state of facts as that their admission by the defendants' demurrer would leave but the legal conclusion to be drawn in his favor. For some undisclosed reason, the case below was treated and disposed of as though by the demurrer the allegations of the complaint as to the legal conclusion of a title and interest in the plaintiff were substantially admitted, and the testamentary devise, which lies at the foundation of plaintiff's claim of title, apparently went without interpretation or consideration. To the defendants' contention here that the heirs at law of testator have taken no title, under the devise in question, the plaintiff replies that they are precluded from occupying that position, inasmuch as ‘all the allegations of the complaint are admitted by the demurrer.’ Of course there is nothing in such a reply; for, by the demurrer, no admission is made save as to such relevant facts as were well pleaded. There could be no admission by that pleading of any legal conclusions, or of any interpretation placed by the plaintiff upon the devise. The question, therefore, presents itself as to what was the effect of the devise upon the title to the real estate of which the testator died seised. The devise is stated at length in the complaint in the following words: ‘ Third. I hereby devise and convey all my undivided one-half interest in the lot of land and appurtenances situate on the corner of Fifty-Fourth street and Seventh avenue in the city of New York, now owned by me and my brother Peter Masterson, jointly, in trust to my said executor to collect the rents, issues, and profits of the same and pay over six hundred dollars thereof to my wife so long as she remains unmarried, and the balance of said rents and profits my executors shall pay to my said brother, Peter Masterson, but if, in the discretion of my said brother and my said executor, it should be deemed advisable to sell said real estate, then my said executor is hereby authorized to unite in a sale of said premises, and is hereby empowered to execute all needful conveyances for that purpose, and from the proceeds of such sale pay to my wife the sum of six hundred dollars annually as long as she remains...