Hoey v. Kenny

25 Barb. 396, 1857 N.Y. App. Div. LEXIS 135

• Court: New York Supreme Court
• Decided: September 14, 1857
• Status: Published

Opinion

By the Court, Mitchell, P. J.

Nicholas Kenny made his will in 1836, and thereby gave one half of his estate, .subject to two annuities and to the widow’s dower, as follows : “ Unto my beloved wife Margaret Kenny, to be held and enjoyed by her during her natural life, and by her to be divided and distributed by will among my relatives, in such shares as she may see fit and deem to be just.” This was a direct devise to his widow of that half, to hold during her life, for her own use, and in, trust for her to divide and distribute it by will among the relatives of the testator, in such shares as she might deem just. She made no will. She had power to make one, even to the last moment of her life, if then in sound mind. Her selection of the relatives might therefore be among those who might be living at her decease, and would not be limited to those living at the testator’s death. The testator had alien relatives," but no issue of his own. He probably considered that there would be changes among them during his wife’s survivorship of him; some might die, others become unfit subjects for his bounty, and ho therefore meant to give the most "beneficial power to her that she, by exercising her discretion to the last moment of her life, might carry out his will, and represent him, and act with the same power that he could, if he had lived as long as she.

[New York General Term, September 14, 1857.

As she did not exercise the power of distribution, and it was a power in trust for the benefit of third parties, the law distributes the property equally among the whole class among which he might have distributed it. This enables all who were capable of inheriting at her death, to take the land, although they were aliens at the testator’s death. They belong to the class to whom the widow could give, and are therefore in the class to whom the law gives in equal shares. This was the order made at special term, and it. should be affirmed with costs.

The decisions respecting the construction of such clauses where no statute exists, do not apply; as our statute makes a new law, which is to govern these cases. (1 R. S. 734, § 100.)

Order affirmed.

Mitchell, Roosevelt and Peabody, Justices.]