Cooper v. Remsen

3 Johns. Ch. 382

• Court: New York Court of Chancery
• Decided: June 30, 1818
• Status: Published

Opinion

The Chancellor.

It is impossible to maintain this suit upon these pleadings.

It is admitted that the plaintiffs had separated, and lived .apart when the will was made. This appears from one of the answers, but not from the bill, which only states, “ that at the time of the date of the codicil, and at the testator’s death, the plaintiffs were living and cohabiting together, and that the testator well knew it, and that immediately after the death of the testator, the plaintiffs separated from each other, and have continued to live separate and apart ever since, until within two months previous o the filing of the bill.” The bill states no other separation, nor assigns any cause for the one which took place. The inference, then, is, that the plaintiffs separated for the .sole purpose of entitling themselves to the legacy. Such an act cannot receive countenance. It was immoral; and yet the plaintiffs come here to calumniate the memory of their father, by charging him with making a provision for illegal and immoral purposes, and that it was intended to induce the plaintiffs to violate their matrimonial engagement. But I think the provision may receive a better construction. If the parties lived apart when he' made his will, as one of the answers admits, the provision may have been humanely intended to provide a suitable maintenance for a deserted child.

I can only judge of this case from the facts appearing-in the pleadings; and I shall accordingly dismiss the bill with costs to the defendants, who are executors, with liberty, however, to the plaintiffs, on their suggestion, to amend their bill, within thirty days, on payment of costs.

Decree accor dingly