Davis v. Davis

86 A.D. 401, 83 N.Y.S. 794, 1903 N.Y. App. Div. LEXIS 2381

Opinion

Jenks, J. :

I ad.vise affirmance of the judgment, except so far as it determines that the 17th clause of the will is void. The clause reads as follows: “ If any of my grandchildren should ever renounce the Hebrew Faith, such grandchild shall be disinherited and deprived of all provision under this Will.”

It is not contended that any one of the grandchildren has apostatized or threatens to do so. The question has not arisen, nor is there any evidence that there is any probability of its being aught but academic. The purpose of the action is entirely foreign to the clause- or to anything bearing upon it, and I see no reason why the court should grasp out to construe it. (Horton v. Cantwell,. 108 N. Y. 255, 266.) If the question were necessarily before the court for construction, .1 am not prepared to say that the clause is illegal. I think that it has never been directly adjudicated in this State. But in England, Hodgson v. Halford (L. R. 11 Ch. Div. 959) and Ex Parte Mary Eleanor Dickson (1 Sim. [N. S.] 37) are authorities which go far to sustain its validity. The latter authority is mentioned in Hogan v. Curtin (88 N. Y. 162, 171) in the learned dis-cnssion upon conditions and their validity by Andrews, Ch. J. The fact that there is no devise over is to be read in connection with the latter part of the same learned opinion.

The judgment should be' modified by striking therefrom the adjudication as to the validity of the 17th clause, and, as thus modified, affirmed, without costs.

Goodrich, P. J., Bartlett, Woodward and Hirschberg, JJ., concurred.

Judgment modified in accordance with the opinion of Jenks, J., and as modified affirmed, without costs.