Moore v. Appleby

• Decision Date: 17 January 1888
• Citation: 15 N.E. 377,108 N.Y. 237
• Parties: MOORE et al. v. APPLEBY.
• Court: New York Court of Appeals Court of Appeals

108 N.Y. 237

15 N.E. 377

MOORE et al.

v.APPLEBY.¹

Court of Appeals of New York.

January 17, 1888.

Appeal from general term, supreme court, First department.

Action by Garrett C. Moore and Hugh M. Reynolds against Charles E. Appleby, to recover $1,600 paid by plaintiffs to defendant on a contract for the sale of real property. The plaintiffs' claim is that defendant's title is defective, in that the property is subject to a vested estate of inheritance in William Tucker, Edward Tucker, Sarah E. Carter, Gideon J. Tucker, and Joseph Tucker, or their heirs or assigns. The property was a part of the residuary estate of Gideon Tucker, which by his will was given to four children, of whom Charles was one, and who were to have each one-fourth. By a codicil, testator made the following provisions in reference to the one-fourth of Charles: ‘All the share, interest, and portion of my estate, both real and personal, which is in and by said last will given, devised, or bequeathed unto my said son Charles, I do give, devise, and bequeath unto my son George W., his heirs, executors, administrators, and assigns, upon the following trusts, that is to say, to collect, receive, and take into his possession all personal estate belonging or appertaining to such share, and all the rents, issues, and profits of the real estate, part and parcel of such share of my said son Charles, and apply all the rents, profits, interest, or income of such share to the use of my said son Charles during his natural life; and upon his death, leaving a lawful child or children, to assign, transfer, and convey the said share, interest, or portion of my said estate, real and personal, unto such, his child or children, their heirs, executors, administrators, and assigns, equally to be divided among such children, if more than one; and, in case my said son Charles shall die without leaving any such child or children, then to convey, assign, and transfer such share of my estate to the heirs at law of my said son Charles.’ After the death of testator, the executor in his own right, and as trustee for Charles, commenced an action for the partition of the estate; but the persons presumptively or actually entitled to take the one-fourth of the property in remainder, under the codicil, were not made parties. The property was purchased by the trustee and others, and subsequently another action for partition among the purchasers was brought, and the same omission of parties was made. Under the last partition, the property in question was allotted to James S. McCall in severalty, who conveyed to Sarah E. S. Appleby, the wife of defendant. Subsequently, Charles died without issue. Defendant tendered a deed executed by himself and wife, but it was refused. The plaintiff had judgment. On appeal to the general term, the judgment was modified by reducing the amount of the extra allowance. Both parties appeal,-the plaintiff, from so much of the judgment of the general term as reduced the amount of the extra...