Bennett v. McLaughlin

125 A.D. 172, 109 N.Y.S. 63, 1908 N.Y. App. Div. LEXIS 2737

Opinion

Gaynor, J.:

The devise to the wife was in fee. It is in clear terms, and the later words do not cut it down. They could not do so' unless they manifest that clear intention. It would not suffice that they raise a doubt on the question. The later words of the right of the wife to sell “as she may deem proper and for the best interest of our children ”, do not reduce her estate to one for life or make her the trustee of the children. The expression of the testator’s wish that if anything be left that she shall divide it among the children does not annex a condition to the devise that if the devisee do not dispose of the property by deed of conveyance it shall go to the children on her death. ■ The' words fall much short thereof (Campbell v. Beaumont, 91 N. Y. 465 ; Banzer v. Banzer, 156 id. 429 ; Foose v. Whitmore, 82 id. 405; Post v. Moore, 181 id. 15).

The judgment should be affirmed.

Jenks, ITookeb, Rich and Milleb, JJ., concurred.

Judgment affirmed, with costs.