16 Barb. 569 | N.Y. Sup. Ct. | 1852
The first question presented in this case is, whether the execution of the deed by the testator, conveying the same land which he had previously devised in his will, was a revocation of the will. The cases are abundant, that a conveyance made subsequent to a devise of the same land amounts to a revocation: and this is so, although a mortgage is taken back.
This view brings me to the consideration of another and the only remaining important question in the case. The deed from the testator to Boies was dated the 19th day of February, 1848, and a mortgage was taken for the purchase money at the same time. On the same day of the execution of these papers, the
After receiving this conveyance, and in September, 1851, the testator died, leaving his will, made in 1845, unrevoked and not altered, except by the codicil in 1847, which merely repudiates a legacy to the plaintiff, left him in the will; and under this will, proved since his death, the defendants claim. The question then' is, whether a formal republication of the will was necessary, after the testator became reinvested with his estate; or whether, as he had the same property at the time of his death which he had when he devised it, although the title had once been out of him, it passed to the devisees. The 5th section of
The case of Parker v. Bogardus, (1 Seld. 309,) it appears to me, settles this question. It decides in so many words, that a will executed before the revised statutes took effect, though the testator died afterwards, disposes only of such estate as he had
C. L. Allen, Justice.]
Another view presented by the counsel for the defendants, was that the assignment of the mortgage of William Boies to Charles Brown, and creating him a trustee for the legatees in the will, vested the legal title in him, and that he could not reassign the mortgage without the consent of the cestuis que trust. There is no evidence, as before remarked, that there was any delivery of this assignment. If it was fully delivered there would probably be nothing in this view of counsel if the trust was a valid one, and if the case of Gilchrist v. Stevenson, (9 Barb. 9,) is to be regarded as law, and it has not been reversed. Here, however, the rights of the cestuis que trust are fully protected. But I do not pass upon this point, considering the conclusions at which I have arrived as fully decisive of the case.
The complaint must be dismissed, with costs.