Stanfield v. Thorne

217 A.D. 767

Opinion

Judgment unanimously affirmed, with costs. The will indicates that the testator had the situation of all Ms property very carefully in mind, and when he wished an after-acquired interest to pass he provided for it. He, however, made no such provision as to the property involved in this action. The testator devised all Ms right, title and interest in and to the parcel in question, but he particularly stated what that right, title and interest then was. “ Whenever a testator refers to an actually existing state of tMngs, his language should be held as referring to the date of the will, and not to Ms death.” (Wetmore v. Parker, 52 N. Y. 450; Gold v. Judson, 21 Conn. 616.) And in order to carry after-acquired property to the devisee, there must be such language as will enable the court to see that the testator intended the devise to operate upon real estate which he should afterwards purchase. (Lynes v. Townsend, 33 N. Y. 558; Gleason v. Norton, 226 id. 679.) Section 14 of the Decedent Estate Law cannot be invoked in appellant’s favor, for the testator did not devise all Ms real property in express terms, nor did he “ in any other terms ” denote Ms intent to do so. Present — Kelly, P. J., Jaycox, Manning, Young and Kapper, JJ.