Wimple v. Fonda

2 Johns. 288

• Court: New York Supreme Court
• Decided: May 15, 1807
• Status: Published

Opinion

Thompson, J.

delivered the opinion of the court.— This action is brought against the defendants, as heirs and devisees of Henry V. Fonda, deceased, and the question submitted to the court is, whether Henry V. Fonda took an estate under his father’s will, which he could devise to the defendants, or which would descend to them, as heirs at law on his death. The case was submitted without argument, and I am unable to discover, what could give rise to any doubt on this question. By his will, Jellis Fonda, the father of Henry, devises that part of his real estate now in question, to his wife Jannetie, during her natural life, and after her death, to his son Henry, in fee. Henry’s dying before his mother, Jannetie, would not prevent the estate from passing by his will. He was seised of the remainder immediately on the death of his father, and had, to all intents and purposes, an estate commencing in presentí, though to be occupied and enjoyed in futuro. The particular estate, during life, and the remainder are but one and the same estate, in the law; the whole of which passed at once on the death of the testator, and the remainder-man was seised of his remainder, at the same time the particular tenant was possessed of her estate. The possession of the particular tenant, is the possession of the remainder-man, so as to enable him to dispose of his estate by deed or will.

Judgment for the plaintiff.