Conkling v. Brown

57 Barb. 265 | N.Y. Sup. Ct. | 1870

By the Court.—Cardozo, J.

The lot in question is part of land which descended _from Boltis Moore to Augustus M. Winter, and Margaret" Cheesehrough, who thus "became tenants in common. Each was seized solely or severally of his undivided share of the land ; and all there was of unity between them was the possession, not estate, in the land (4 Kent Com., 368); and that possession they could sever and divide, and assign to each his separate part by parol, and the release which they executed effected nothing more. Neither acquired any new estate (Wood v. Fleet, 36 N. Y., 499).

Upon the death, therefore, of Augustus M. Winter, intestate, unmarried, without descendants, leaving no father, the fee descended to his mother, Mrs. Mary Hill, and to the exclusion of the brothers and sisters of the half blood, of Mr. Winter, they not being of the blood of Mr. Moore, the ancestor of M. Winter (1 Rev. Stat., Edmonds’ ed., 702; Morris v. Ward, 36 N. Y., 587).

There must be judgment for the plaintiff on the submission.

Ingraham and George G. Barnard, JJ., concurred.