Shires v. Shires

78 N.Y.S. 603, 76 A.D. 621

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 12, 1902
• Status: Published

Opinion

PARKER, P. J.

From the evidence in this case it cannot be concluded that the wife, Margaret Winne, received the property in question as a trustee for her husband, Abram Winne. The clear weight of evidence, I think, is to the effect that Abram intended to convey' to his wife, in her own right, whatever interest he had left in this property; and, although she and her husband and their son Walton thereafter lived together and seem to have had a mutual interest in it, there is nothing to indicate that her absolute title was not recognized by them all. I do not discover that Abram Winne, after his wife had acquired the title, and up to the time of his death in 1873, did any acts that were necessarily inconsistent with the theory that the property was during all that time the wife’s; and, after his death, whatever Walton Winne did indicating acts of ownership may as-well be ascribed to the fact that he was the sole heir of his mother, and expected as such to succeed to her interest, as that he claimed or considered himself to be the owner as the heir at law of his deceased father. Indeed, the recitation in the mortgage executed by him to Margaret Ross on December 30, 1899, indicates that in his-judgment and understanding of the .situation the property had descended to him from his mother, and not from his father. This view of the case requires an affirmance of the judgment appealed from. It shows that the property in question was, as matter of fact, derived by the intestate, Walton A. Winne, from his mother, and therefore it should descend, under the statute, to the mother’s relatives, as the judgment provides.

Judgment affirmed, with costs. All concur.