Lauter v. Hirsch

Appellate Terms of the Supreme Court of New York

Lauter v. Hirsch

121 N.Y.S. 651

CourtAppellate Terms of the Supreme Court of New York

DecidedMarch 10, 1910

StatusPublished

This text of 121 N.Y.S. 651 (Lauter v. Hirsch) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Lauter v. Hirsch, 121 N.Y.S. 651 (N.Y. Ct. App. 1910).

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Opinion

PER CURIAM.

It is conceded that there is no property which would justify the appointment of the receiver, except an interest under the will of the appellant’s deceased father, who died, February 3, 1909, leaving a widow, who is still living, and six children. The residuary estate is left to the executors in trust for the widow during her life. The will then proceeds as follows:

“And upon her death, I direct that my said entire estate, or as much thereof as shall remain, be divided among all my children in equal shares, and should any of my children die, leaving issue surviving such issue shall take the share the parent would have taken if living.”

[652]*652The case has been argued as if the question involved were whether the appellant had a vested or contingent interest in the property. This is a common, but not strictly accurate, use of words'. Ever since the Revised Statutes, at least, all expectant estates have been alienable, whether vested or contingent. 1 Rev. St. p. 725, § 35 ; Real Property Law (Laws 1896, c. 547) § 49; Laws 1909, c. 52 (Consol. Laws, c. 50) § 11; Personal Property Law (Laws 1897, c. 417) § 2; Laws 1909, c. 45 (Consol. Laws, c. 41) § 11; Moore v. Littel, 41 N. Y. 66, 83-86; Dodge v. Stevens, 105 N. Y. 585, 588, 12 N. E. 759; Griffin v. Shepard, 124 N. Y. 70, 26 N. E. 339; Roosa v. Harrington, 171 N. Y. 341, 353, 64 N. E. 1.

The real question is whether appellant has any present interest at all, whether vested or contingent. Upon this question we have the highest authority for saying that the cases are not at all in harmony. Connelly v. O’Brien, 166 N. Y. 406, 409, 60 N. E. 20. We incline to the opinion that they preponderate in favor of the position that he has no present interest. • Matter of Crane, 164 N. Y. 71, 58 N. E. 47; Dougherty v. Thompson, 167 N. Y. 472, 60 N. E. 760; Matter of Keogh, 47 Misc. Rep. 37, 95 N. Y. Supp. 191; Id., 112 App. Div. 414, 98 N. Y. Supp. 433; Id., 186 N. Y. 544, 79 N. E. 1109. If this opinion is correct, he has no estate that is alienable, and therefore none that would pass to the receiver or trustee. In re Hoadley (D. C.) 101 Fed. 233, and cases cited; In re Gardner (D. C.) 106 Fed. 670. The testamentary provision under consideration in the latter case was closely similar to the one which we have here.

Order reversed, with $10 costs and disbursements, and motion granted, with $10 costs.

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PER CURIAM.

It is conceded that there is no property which would justify the appointment of the receiver, except an interest under the will of the appellant’s deceased father, who died, February 3, 1909, leaving a widow, who is still living, and six children. The residuary estate is left to the executors in trust for the widow during her life. The will then proceeds as follows:

“And upon her death, I direct that my said entire estate, or as much thereof as shall remain, be divided among all my children in equal shares, and should any of my children die, leaving issue surviving such issue shall take the share the parent would have taken if living.”

[652]*652The case has been argued as if the question involved were whether the appellant had a vested or contingent interest in the property. This is a common, but not strictly accurate, use of words'. Ever since the Revised Statutes, at least, all expectant estates have been alienable, whether vested or contingent. 1 Rev. St. p. 725, § 35 ; Real Property Law (Laws 1896, c. 547) § 49; Laws 1909, c. 52 (Consol. Laws, c. 50) § 11; Personal Property Law (Laws 1897, c. 417) § 2; Laws 1909, c. 45 (Consol. Laws, c. 41) § 11; Moore v. Littel, 41 N. Y. 66, 83-86; Dodge v. Stevens, 105 N. Y. 585, 588, 12 N. E. 759; Griffin v. Shepard, 124 N. Y. 70, 26 N. E. 339; Roosa v. Harrington, 171 N. Y. 341, 353, 64 N. E. 1.

The real question is whether appellant has any present interest at all, whether vested or contingent. Upon this question we have the highest authority for saying that the cases are not at all in harmony. Connelly v. O’Brien, 166 N. Y. 406, 409, 60 N. E. 20. We incline to the opinion that they preponderate in favor of the position that he has no present interest. • Matter of Crane, 164 N. Y. 71, 58 N. E. 47; Dougherty v. Thompson, 167 N. Y. 472, 60 N. E. 760; Matter of Keogh, 47 Misc. Rep. 37, 95 N. Y. Supp. 191; Id., 112 App. Div. 414, 98 N. Y. Supp. 433; Id., 186 N. Y. 544, 79 N. E. 1109. If this opinion is correct, he has no estate that is alienable, and therefore none that would pass to the receiver or trustee. In re Hoadley (D. C.) 101 Fed. 233, and cases cited; In re Gardner (D. C.) 106 Fed. 670. The testamentary provision under consideration in the latter case was closely similar to the one which we have here.

Order reversed, with $10 costs and disbursements, and motion granted, with $10 costs.

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121 N.Y.S. 651, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lauter-v-hirsch-nyappterm-1910.

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