123 N.Y. 458, Masterson v. Townshend

Citation:123 N.Y. 458
Party Name:PETER T. MASTERSON, Respondent, v. JOHN TOWNSHEND et al., Appellants.
Case Date:December 02, 1890
Court:New York Court of Appeals

Page 458

123 N.Y. 458



JOHN TOWNSHEND et al., Appellants.

New York Court of Appeal

December 2, 1890

Argued October 9, 1890.

Page 459


Theron G. Strong for appellant. Decedent intended that Peter should have decedent's share of the property, subject to the widow's annuity, and, therefore, the heirs at law have no title. (1 R. S. 729, § § 61, 62; Roe v. Vingut, 117 N.Y. 204; Phillips v. Davies, 92 id. 204.) Where there is no express gift, yet if the intent of the decedent seems to favor it, a gift will be inferred from the language used, and will be implied. ( In re Vowers, 113 N.Y. 569.) The appellants are not precluded by the demurrer from asking a construction of

Page 460

the will. (Stephen on Pl. 144; Bonnell v. Griswold, 68 N.Y. 294; B. Inst. v. Bitter, 8 id. 250-256; Murray v. Clarendon, L. R. [9 Eq.] 17.)

George Wilcox for respondent. Defendants are precluded from insisting on appeal that the heirs at law of the testator have taken no title under the will, as all the allegations of the complaint are admitted by the demurrer. (Abb. Dig. of 1884, 258; Brown v. Champlin, 66 N.Y. 219; Thayer v. Gill, 42 Hun, 268; Garner v. M. B. Assn., 6 Duer, 539, 543; 2 Van Santvoord's Eq. Pl. 448; 3 Barb. Ch. 852; 2 Boone's Pl. 302; Townshend v. Townshend, 1 Abb. [ N. C.] 81; Wooley v. Newcombe, 87 N.Y. 612; Berney v. Drexel, 33 Hun, 34.) The literal meaning of the words used by the testator must control in the construction of the will, and that is in accordance with the allegations of the complaint. ( Campbell v. Beaumont, 92 N.Y. 204; Hone v. Van Schaick, 3 id. 544.) The clause of the will in question cannot be construed as a devise of the fee to Peter Masterson. (1 R. S. 729, § 60; 3 id. 2182, § 60; Noyes v. Blakeman, 6 N.Y. 567.) There is no devise by implication. (2 Jarman on Wills, 163.) The trust established by the will ceased upon the remarriage of the widow, and the estate descended to the heirs of the testator. (1 R. S. 729, § § 62, 67; 3 id. 2182.)


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, such a state of facts as that their admission by the defendant's demurrer would leave but the legal conclusion to be...

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