In re Stewart

Saratoga Chancery Court

In re Stewart

4 Sarat. Ch. Sent. 71

DecidedJanuary 7, 1845

StatusPublished

This text of 4 Sarat. Ch. Sent. 71 (In re Stewart) is published on Counsel Stack Legal Research, covering Saratoga Chancery Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re Stewart, 4 Sarat. Ch. Sent. 71 (N.Y. Super. Ct. 1845).

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Opinion

The Chancellor.

This is an application to prove the will of Sarah Stewart, late of Cleveland in the state of Ohio, deceased, as a- will both of real and personal estate. It appears by the testimony that the testatrix was a feme covert, and was domiciled in the state of Ohio at the lime of executing her will and at the time of her death, and that the will was executed there in the presence of-two witnesses. She left real and personal property in the county of Onondaga, tó which she was entitled from the estate of her deceased father; and by the laws ef Ohio, it is established by the testimony, the will of a feme covert is valid. There must therefore be a decree declaring that the will is-duly proved and established as a valid will of personal' estate wherever situated, and the decree must be transmitted to 'the surrogate óf the county of Onondaga, with directions to/him to grant.letters testamentary or of administration with the will annexed thereon, in the same manuer as if the said will had been duly proved before him as a. will of personal estate.

The will, however, is not valid as a will of real property situated within this.state. For the devise, of such property is governed by the lex loci rei sitce. It is valid, however, as ata [72]*72appointment of real estate under a power iri relation to any real estate which bv the laws of this state the decedent wai authorized to appoint or dispose of by will, under the provis ions of the 110th section of the article of the revised statute: relative to powers. (1 R. S. 735.) If any of the real estate therefore was subject to such an appointment, by devise or will, under the will of her father or otherwise, the decree may also declare this will of Mrs. Stewart duly executed for that purpose, and may.establish it to that extent, and direct it to be recorded. But as a feme covert has no power to devise lands here, except in the execution of such a power, the decree must declare that the will is not duly proved as a will of real property situated in the state of New-York, except sp far as it may operate as an appointment of real estate by a feme covert under a valid power for that purpose.

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The Chancellor.

This is an application to prove the will of Sarah Stewart, late of Cleveland in the state of Ohio, deceased, as a- will both of real and personal estate. It appears by the testimony that the testatrix was a feme covert, and was domiciled in the state of Ohio at the lime of executing her will and at the time of her death, and that the will was executed there in the presence of-two witnesses. She left real and personal property in the county of Onondaga, tó which she was entitled from the estate of her deceased father; and by the laws ef Ohio, it is established by the testimony, the will of a feme covert is valid. There must therefore be a decree declaring that the will is-duly proved and established as a valid will of personal' estate wherever situated, and the decree must be transmitted to 'the surrogate óf the county of Onondaga, with directions to/him to grant.letters testamentary or of administration with the will annexed thereon, in the same manuer as if the said will had been duly proved before him as a. will of personal estate.

The will, however, is not valid as a will of real property situated within this.state. For the devise, of such property is governed by the lex loci rei sitce. It is valid, however, as ata [72]*72appointment of real estate under a power iri relation to any real estate which bv the laws of this state the decedent wai authorized to appoint or dispose of by will, under the provis ions of the 110th section of the article of the revised statute: relative to powers. (1 R. S. 735.) If any of the real estate therefore was subject to such an appointment, by devise or will, under the will of her father or otherwise, the decree may also declare this will of Mrs. Stewart duly executed for that purpose, and may.establish it to that extent, and direct it to be recorded. But as a feme covert has no power to devise lands here, except in the execution of such a power, the decree must declare that the will is not duly proved as a will of real property situated in the state of New-York, except sp far as it may operate as an appointment of real estate by a feme covert under a valid power for that purpose.

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Bluebook (online)

4 Sarat. Ch. Sent. 71, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-stewart-nychanctsara-1845.