Smith ex dem. Roosevelt v. Van Dursen

New York Supreme Court

Smith ex dem. Roosevelt v. Van Dursen

15 Johns. 343

CourtNew York Supreme Court

DecidedAugust 15, 1818

StatusPublished

Cited by4 cases

This text of 15 Johns. 343 (Smith ex dem. Roosevelt v. Van Dursen) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Smith ex dem. Roosevelt v. Van Dursen, 15 Johns. 343 (N.Y. Super. Ct. 1818).

Pincite

Opinion

Spencer, J.

delivered the opinion of the court. It is scarcely necessary after so many decisions upon the points arising in this case, to do more than briefly state the facts, and refer to the cases decided.

Peter Elsworth, the patentee of the lot, of which the premises in question are a part, was an officer in the revolutionary war, in the line of this state, and as such entitled to a grant of bounty lands ; the patent to him was a fulfilment, on the part of the state, of the engagement to give the lands. [345]*345He died in May, 1781, and by his will duly executed, he devised to his father, William Elsworth, all his real and personal estate whatsoever, and wheresoever, and constituted his father executor. The will authorized the executor to sell and convey the real estate. The plaintiff’s title is derived under a sale by the executor, and no objection is made to the plaintiff’s title, if William Elsworth became seised of the lot, either under the will, or as heir to the patentee.

Peter Elsworth died without issue, leaving his father and a brother Theophilus ; the defendant has deduced a regular title under him, if he was seised as heir of the patentee.

In the case of Jackson v. Howe, (14 Johns. Rep. 406.) Jackson v. Phelps, (3 Caines, 62.) and Jackson v. Winslow, (2 Johns. Rep. 80.) this court decided, that by the act of the 5th of April, 1803, the titles to the military bounty lots were vested in the officers and soldiers, at the time of their respective deaths, without reference to the period of issuing the letters patent.

It follows, then, that Peter Elsworth was seised of the lot when he died, and might devise it. But the act regulating descents, adopted by the act of the 5th of April, 1803, in reference to their lands, would also vest the lot in William Elsworth, as heir to his son, the patentee, for the lot was not held by bona fide purchasers or devisees under Theophilus, on the 5th of April, 1803.

The lessors of the plaintiff, Eliza Evertson and Sarah Roosevelt, are the devisees, and also the heirs at law of Cornelius C. Roosevelt. The adverse possession at the time of his devising, though it invalidates the devise, does not prevent the descent.

Judgment for the plaintiff.

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Spencer, J.

delivered the opinion of the court. It is scarcely necessary after so many decisions upon the points arising in this case, to do more than briefly state the facts, and refer to the cases decided.

Peter Elsworth, the patentee of the lot, of which the premises in question are a part, was an officer in the revolutionary war, in the line of this state, and as such entitled to a grant of bounty lands ; the patent to him was a fulfilment, on the part of the state, of the engagement to give the lands. [345]*345He died in May, 1781, and by his will duly executed, he devised to his father, William Elsworth, all his real and personal estate whatsoever, and wheresoever, and constituted his father executor. The will authorized the executor to sell and convey the real estate. The plaintiff’s title is derived under a sale by the executor, and no objection is made to the plaintiff’s title, if William Elsworth became seised of the lot, either under the will, or as heir to the patentee.

Peter Elsworth died without issue, leaving his father and a brother Theophilus ; the defendant has deduced a regular title under him, if he was seised as heir of the patentee.

In the case of Jackson v. Howe, (14 Johns. Rep. 406.) Jackson v. Phelps, (3 Caines, 62.) and Jackson v. Winslow, (2 Johns. Rep. 80.) this court decided, that by the act of the 5th of April, 1803, the titles to the military bounty lots were vested in the officers and soldiers, at the time of their respective deaths, without reference to the period of issuing the letters patent.

It follows, then, that Peter Elsworth was seised of the lot when he died, and might devise it. But the act regulating descents, adopted by the act of the 5th of April, 1803, in reference to their lands, would also vest the lot in William Elsworth, as heir to his son, the patentee, for the lot was not held by bona fide purchasers or devisees under Theophilus, on the 5th of April, 1803.

The lessors of the plaintiff, Eliza Evertson and Sarah Roosevelt, are the devisees, and also the heirs at law of Cornelius C. Roosevelt. The adverse possession at the time of his devising, though it invalidates the devise, does not prevent the descent.

Judgment for the plaintiff.

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15 Johns. 343, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-ex-dem-roosevelt-v-van-dursen-nysupct-1818.

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