Youngs v. Youngs

92 N.Y.S. 546

Opinion

PER CURIAM.

After careful consideration of this somewhat complicated and intricate case, we have reached the conclusion that the judgment (which was not brought before this court until more than 13 years after its rendition) should be affirmed, for the reasons given by the learned and accomplished referee (now deceased) before whom the action was tried. We think he was clearly right in finding as a matter of fact that Graham Youngs, Sr., did not accept the devise of the lands in controversy under his father’s will. These lands having passed to the heirs at law of the testator, we also agree with the referee that all the shares are subject to the charges made in the devise to Graham Youngs, Sr., and that these charges should not be restricted only to the shares which go to his children. It seems to have been the intention of the testator that the lands devised to his son Graham, to whomsoever they might go if he failed to accept the devise, should bear the burden of paying Graham’s indebtedness to the testator’s estate. It is not hostile to the intent of the testator to hold that all the lands are subject to the charges, instead of only the shares which the children of Graham take .as heirs at law. The testator intended that Graham should have all these lands after paying his debt, if he did pay it —in other words, he intended that Graham’s debt should be paid out of the lands devised to him; and there is no injustice in carrying out this intention, no matter who acquires the lands in consequence of Graham’s failure to accept the devise. If he had accepted the devise, none of the heirs would have received any portion of these lands whatever.

The judgment should be affirmed.

Judgment affirmed, with costs.