Gallagher v. Crooks

• Decision Date: 19 April 1892
• Citation: 132 N.Y. 338,30 N.E. 746
• Parties: GALLAGHER et al. v. CROOKS et al., (two cases.)
• Court: New York Court of Appeals Court of Appeals

132 N.Y. 338

30 N.E. 746

GALLAGHER et al.

v.CROOKS et al., (two cases.)

Court of Appeals of New York, Second Division.

April 19, 1892.

Appeals from supreme court, general term first department.

Two actions in ejectment by Rebecca Gallagher and others against Susan Crooks and others. Judgments of nonsuit affirmed by general term. Plaintiffs appeal. Reversed.

Robert O'Byrne, for appellants.

R. B. Gwillim, for respondents.

FOLLETT, C. J.

Action No. 1, ejectment, was brought to recover a lot in the city of New York known as ‘No. 325 Third Street,’ of which James D. Gallagher died seised. Action No. 2, ejectment, was brought to recover a lot in said city known as ‘No. 34 Scammel Street,’ of which James D. Gallagher died seised. He left a will executed April 16, 1843, which was duly probated January 29, 1845, by which he devised all of his realty and bequeathed all of his personalty to his widow, Ellen Gallagher, during life, subject to the payment of three dollars per week (before his widow's death) for the support of his brother, John N. Gallagher, if he should be unable to maintain himself. After the death of the widow he directed that $1,000 should be paid to the Roman Catholic Orphan Asylum; $1,000 should be civided between Edward Harrigan and bernard Harrigan; and he authorized his widow to bequeath $1,000 to any person she might see fit; ‘the remainder, if any, to be equally divided between the childred of John Grady, and all my relations by my father's side’ that were in the United States at the date of his will, subject to the payment of four dollars per week (after his widow's death) for the support of his brother, John N. Gallagher, if necessary for his maintenance. The will contains the following clause: ‘He [John N. Gallagher] is to have nothing from my property, and I hereby cut off from inberiting any thing or property of mine his wife, (Rebecca,) or any person in any way related to her, either by blood or marriage, with the exception of himself, and he only in the way I have stated above.’ It seems to be undisputed that in 1798 John Gallagher emigrated from Ireland to the United States; soon thereafter became a resident of the city of New York, where he and Catharine Gallagher intermarried; at which city he died, in 1836, leaving his widow and two sons, James D. Gallagher and John N. Gallagher, both born in New York, who were his only heirs. About 1842, Catharine, the widow of John and the mother of James D. and John N., died. In 1833, John N. Gallagher and Rebecca Noe intermarried at the city of New York, where they resided as husband and wife until December 4, 1875, when he died leaving Rebecca, his widow, John N., Thomas B., Catharine F., Rebecca T., and Mary L., his children and only heirs. Mary L. and Charles A. Hammer intermarried, and subsequently both died, leaving Charles A. Hammer and Norman Hammer, their children and only heirs. Ellen Gallagher, the widow of James D., the testator, died July 1, 1879. These actions were begun in 1886 by the heirs of John N. Gallagher, who claimed the fee of the lots, and by Rebecca Gallagher, his widow, who claims a dower right in them. The defendants answer that Susan Crooks and John Crawford were lawfully seised of both lots, in fee, but how they acquired title, if any they have, or possession of the lots, is not disclosed by the answers nor by the evidence. The other defendants are tenants of Crooks and Crawford.

The clause in the will above quoted, by which the testator attempted to disinherit his brother, his wife, and their descendants, does not defeat the right of these plaintiffs to the estate, unless the persons to whom the testator attempted to devise the remainder were in existence. In case a testator fails to make a legal devise of his realty, or if, having legally devised it, the devisee fails for any cause, the heir will inherit, notwithstanding there is an express provision in the will that he shall not take any part of the estate. There must be a legal devise to cut off the right of the heir to inherit; mere words of disinheritance are insufficient to effect that purpose. Haxtun v. Corse, 2 Barb. Ch. 521;Chamberlain v. Taylor, 105 N. Y. 185, 193, 11 N. E. Rep. 625; Fitch v. Weber, 6 Hare, 145; Pickering v. Stamford, 3 Ves. 493; Johnson v. Johnson, 4 Beav. 318; 2 Jarm. Wills, (Bigelow's Ed.) 841; 1 Redf. Wills, (4th Ed.) 425. To entitle the plaintiffs to recover, they were bound to establish (1) that John Grady left no children; (2) that the testator had no relatives by his father's side in the United States at the date of his will, or at the date when the devise of the remainder took effect. These were the facts in issue.

Rebecca Gallagher, the widow of John M., who was 79 years of age when her deposition was taken, testified that she knew John Grady, a nephew of the testator's wife, and that he had been dead several years; that he never married, and left no children. This witness also testified that she was familiar with the history of the family of her husband, and of his father, and that she had heard the father, John Gallagher, ...