Underhill v. Wood

65 N.Y.S. 1105, 53 A.D. 640

Opinion

JERKS, J.

In Washbon v. Cope, 144 N. Y. 287, 297, 39 N. E. 388, Pecbham, J., says that the rule is well settled that where the devise or bequest over to third persons is not dependent upon the event of death, simply, but upon death without issue or without children, the death referred to is that in the lifetime of the testator. But the exception is also well recognized that the court will give effect to the language of the testator according to its natural import, as referring to a death, under the circumstances mentioned, occurring either before or after the death of the testator. Such circumstances, it is said, must be cogent enough for the court reasonably to say that there is good and fair ground to apply the exception, not the" rule. The question before the learned special term in this case was whether the rule or the “well-settled exception” applied. I am of opinion that the learned court rightly applied the exception, for the reasons stated in his opinion, and that the conclusion reached as to the capacity of the trustees to take is correct. I therefore think that an affirmance may rest upon that opinion, without further discussion.

Judgment affirmed, with costs to all parties payable out of the estate. All concur.