Wheeler v. Crosby

New York Supreme Court

Wheeler v. Crosby

27 N.Y. Sup. Ct. 140

DecidedJanuary 15, 1880

StatusPublished

This text of 27 N.Y. Sup. Ct. 140 (Wheeler v. Crosby) 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

Wheeler v. Crosby, 27 N.Y. Sup. Ct. 140 (N.Y. Super. Ct. 1880).

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Opinion

Per Curiam:

Wheeler, administrator, was entitled under the will of testatrix to have and receive the moneys payable under the contract for the sale of the real estate by the testatrix to Crosby. The vendees had paid all that could be required of them before the giving of a deed to them of the land by the heirs of the testatrix, when a bond and mortgage was to be given for the unpaid purchase money. But the heirs would not voluntarily give the necessary deed, and hence the administrator could not collect or receive the remainder of the purchase money of the land. Hence, his only course was to enforce by action in equity a specific performance of the contract by the parties thereto or their representatives. ■The administrator therefore had an interest in this contract which he could enforce by action in equity.

The ownership by a wife of real estate constitutes in law a separate estate.

[143]*143The husband may or may not have an interest in.this real estate as tenant by .curtesy. The demurrer in this case is on behalf of the husband of testatrix,' her heir and his wife. If the demurrer is bad as to the heir it was properly overruled.

Under the facts in the case a tender of a deed was not requisite to thé bringing of this action. The administrator could not give the deed. The heir will not. The vendee cannot be compelled to pay without the deed. No other course is possible than to compel by equity the performance of the contract, so that all parties may have the interests to which they are entitled. Any other conclusion would result in gross injustice and might often thwart the wishes and wills of testators, and destroy the rights of devisees or legatees under last wills.

The order and judgment appealed from should be affirmed, with costs.

Present — Leaened, P. J., Boaedman and Bockes, JJ.

Judgment affirmed, with costs.

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Per Curiam:

Wheeler, administrator, was entitled under the will of testatrix to have and receive the moneys payable under the contract for the sale of the real estate by the testatrix to Crosby. The vendees had paid all that could be required of them before the giving of a deed to them of the land by the heirs of the testatrix, when a bond and mortgage was to be given for the unpaid purchase money. But the heirs would not voluntarily give the necessary deed, and hence the administrator could not collect or receive the remainder of the purchase money of the land. Hence, his only course was to enforce by action in equity a specific performance of the contract by the parties thereto or their representatives. ■The administrator therefore had an interest in this contract which he could enforce by action in equity.

The ownership by a wife of real estate constitutes in law a separate estate.

[143]*143The husband may or may not have an interest in.this real estate as tenant by .curtesy. The demurrer in this case is on behalf of the husband of testatrix,' her heir and his wife. If the demurrer is bad as to the heir it was properly overruled.

Under the facts in the case a tender of a deed was not requisite to thé bringing of this action. The administrator could not give the deed. The heir will not. The vendee cannot be compelled to pay without the deed. No other course is possible than to compel by equity the performance of the contract, so that all parties may have the interests to which they are entitled. Any other conclusion would result in gross injustice and might often thwart the wishes and wills of testators, and destroy the rights of devisees or legatees under last wills.

The order and judgment appealed from should be affirmed, with costs.

Present — Leaened, P. J., Boaedman and Bockes, JJ.

Judgment affirmed, with costs.

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Bluebook (online)

27 N.Y. Sup. Ct. 140, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wheeler-v-crosby-nysupct-1880.