In re Roth

Appellate Division of the Supreme Court of New York

In re Roth

248 A.D. 903, 290 N.Y.S. 610, 1936 N.Y. App. Div. LEXIS 8015

CourtAppellate Division of the Supreme Court of the State of New York

DecidedOctober 23, 1936

StatusPublished

Cited by2 cases

This text of 248 A.D. 903 (In re Roth) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re Roth, 248 A.D. 903, 290 N.Y.S. 610, 1936 N.Y. App. Div. LEXIS 8015 (N.Y. Ct. App. 1936).

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Opinion

Decree of the Surrogate’s Court of Queens county reversed on the law, with costs to appellant payable out of the estate, and the executrix directed to make payment of the legacy to the appellant, Rose Roth. The gift of $2,100 in paragraph ninth is absolute. The language following that [904]*904absolute gift, respecting time of payment, is, at best, a condition subsequent, which is inoperative because there is no gift over in the event of a breach of said condition. It is impossible to comply with the condition because the lot upon which the building was desired to be placed is not accessible to the street except over the land of another. Under these circumstances the language expressing a desire that such a building be erected is precatory, not mandatory. (Matter of Vandevort, 62 Hun, 612; Matter of Donald, 149 Mise. 142; Allen v. Trustees of Great Neck Free Church, 240 App. Div. 206.) Lazansky, P. J., Carswell, Davis, Johnston and Adel, JJ., concur.

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Decree of the Surrogate’s Court of Queens county reversed on the law, with costs to appellant payable out of the estate, and the executrix directed to make payment of the legacy to the appellant, Rose Roth. The gift of $2,100 in paragraph ninth is absolute. The language following that [904]*904absolute gift, respecting time of payment, is, at best, a condition subsequent, which is inoperative because there is no gift over in the event of a breach of said condition. It is impossible to comply with the condition because the lot upon which the building was desired to be placed is not accessible to the street except over the land of another. Under these circumstances the language expressing a desire that such a building be erected is precatory, not mandatory. (Matter of Vandevort, 62 Hun, 612; Matter of Donald, 149 Mise. 142; Allen v. Trustees of Great Neck Free Church, 240 App. Div. 206.) Lazansky, P. J., Carswell, Davis, Johnston and Adel, JJ., concur.

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Bluebook (online)

248 A.D. 903, 290 N.Y.S. 610, 1936 N.Y. App. Div. LEXIS 8015, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-roth-nyappdiv-1936.

Opinion

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