Webb v. Sanford

23 Jones & S. 139, 11 N.Y. St. Rep. 731

Opinion

By the Court.—Truax, J.

While it is well settled that a valid executory devise cannot at common law be limited after a fee, upon the contingency of the non-execution of an absolute power of disposition vested in the first taker, it is to be noticed that the first taker under the will of Mr. Webb did not have an absolute power of disposition. Her power of disposition was limited to the persons therein named, namely, her relatives; and :a disposition made otherwise than among her relatives would have been illegal and void. For this reason the will does not fall within the rule laid down by the court •of appeals in Van Horne v. Campbell, 100 N. Y. 287.

We are of the opinion that the will gave to the wife ■a life estate in the property with a limited power of •disposition, to be exercised by her in the method provided in the will; and that upon her death before any •exercise of this power of disposition, the heirs of the "testator held the fee freed from the power.

Judgment is ordered for the plaintiff for the amount ".mentioned in the consent.

.Sedgwick, Ch. J,, and Freedman, J., concurred.