Ferry v. Sampson

• Decision Date: 05 March 1889
• Citation: 112 N.Y. 415,20 N.E. 387
• Parties: FERRY et al. v. SAMPSON et al.
• Court: New York Court of Appeals Court of Appeals

112 N.Y. 415

20 N.E. 387

FERRY et al.

v.SAMPSON et al.¹

Court of Appeals of New York.

March 5, 1889.

Appeal from supreme court, general term, First department.

The suit was brought for partition of property held by the appellants, William R. Ferry, Rebecca Sampson, and others, as tenants in common. The complaint alleged that the parcel in controversy descended from Robert Waite Armstrong, and an adjoining parcel from Charles Preston Armstrong, his brother, to the appellants, and the supreme court so held, and granted judgment of partition and sale of the said two parcels, as of other property held under a different title. The respondent Herman Wronkow purchased the parcel which had belonged to Robert Waite Armstrong, but refused title upon the ground that the death of said Armstrong, intestate, unmarried, and without heirs other than the appellants was not sufficiently proved. His motion to be discharged was granted. The title to the lot in question was in Thomas Armstrong down to February 1, 1833, when he died, devising the lot to his son, Robert Waite Armstrong, by will proved March 20, 1833. Title vested in him by the terms of the will at once, but he was not to dispose or take possession of the property until he attained the age of 30 years, his mother meanwhile to have possession. Prior to 1846, Robert Waite Armstrong went west, and in 1846 he disappeared. At the time of his disappearance he was not married. The appellants are his only heirs, the appellant Rebecca Sampson being his only surviving sister, and the other appellants being the only descendants of a deceased sister. Forty-one years after the disappearance of Robert Waite Armstrong, this action was brought in 1887. Robert Waite Armstrong himself, his wife or widow, if any, his issue and his devisees, if any, were made parties defendant; the object being to dispose, by the adjudication of the court, of any cloud cast upon the title by the inability to prove by direct evidence the death of Robert Waite Armstrong, intestate and unmarried.

Henry H. Man, for appellants.

D. Solis Ritterband, for respondent.

ANDREWS, J.

We think the objection to the title on the ground that Robert Waite Armstrong, the devisee of the premises under the will of his father, was not shown to be dead, or if dead that it was not shown that he died intestate, or leaving no widow or issue surviving, ought not to have prevailed.

The testator died February 1, 1833, and his will proved March 20, 1833. It was shown that Robert Waite Armstrong, whose home and domicile were in the city of New York, being then unmarried, went away from home prior to 1842, being then 20 or 21 years of age. He returned to New York on a visit in that year, and went away again, and in 1846 wrote his mother from Missouri, stating that he was on his way home by way of New Orleans. This was the last that has been heard from him. Up to the year 1846 he was accustomed to write his mother frequently. After 1846, letters were addressed to him by members of the family, but no answers were received, and fruitless inquiries were made to ascertain whether he was alive. It was generally believed by his relatives and friends that he was dead, and his mother, some years afterwards, believing that she was entitled to the premises as his heir, erected houses on the land. The mother died in 1859. The family never heard that Robert Waite Armstrong had been married, and no widow or issue has ever appeared to claim any interest in the land. It is possible that Robert Waite Armstrong may be living, or that he may have died leaving a widow and children. If either of these facts existed, the title is imperfect, unless, indeed, as is claimed, the judgment in partition concludes Robert Waite Armstrong, or any widow or issue left by him, from now asserting any title to the...