Schermerhorn v. Negus

1 Denio 448

Opinion

By the Court, Beardsley, J.

1 think the objections which were taken on the trial, to a recovery in this case, cannot be sustained. The will of Ryer Schermerhorn was not annulled by the clause which it contained against alienation, although that clause, being repugnant to the nature of the estate devised, was void, at least as to those who were to take a fee under the will. (4 Kent’s Com. 131; Newkerk v. Newkerk, 2 Caines, 345; 2 Cruise’s Dig. 6; Mc Williams v. Nisby, 2 Serg. & Rawle, 513; Co. Litt. 222, 223.)

Under the will, the -children of the devisor were tenants in. common for life. When Jeremías, one of those children, died, his share passed by the will to his children, who thereby became tenants in common with the surviving devisees for life.

As the plaintiff’s right did not accrue until the decease of his father, the tenant for life in 1S3G, the adverse possession, had it heen proved, would have been no bar to the action. The testimony offered was therefore properly excluded, and the plaintiff is entitled to judgment on the verdict.

Judgment for plaintiff.