Jackson v. Ireland

3 Wend. 99 | N.Y. Sup. Ct. | 1829

By the Court,

Sutherland, J.

The habendum clause in the deed from the corporation of Albany to John, James and Sarah Ireland, is not inconsistent with the premises or granting part. The deed recites the will, and the object of all the parties was to give effect to it by means of this conveyance. The legal effect of the deed is the same as though the habendum clause, instead of saying, “To have and to hold to the said parties, in the same manner, mentioned in the last will and testament of Thomas Ireland, deceased,” had, without any reference to the will, given the estate to the defendant dufing /¡er widowhood, and the remainder to the two sons in fee. There can be no question that the estate granted may be thus designated and made certain in the habendum clause. It ' .... . . , enlarges and explains, but is not inconsistent with the previous part of the instrument. (3 Cruise, 430, 4 Cruise, 433, and 6 Cruise, tit. 38, Devise, ch. 3, sect. 26, 27, 28.) No doubt the premises in a deed must control when the habendum clause is inconsistent with it.

Admitting the devise to have been inoperative for want of a legal estate in the testator, the grantees in the deed from the corporation, and those claiming under them, are estopped from setting up any title inconsistent with that conveyed by that instrument. The defendant, therefore, has the exclusive right to the possession of the premises in question during her widowhood; and the lessor of the plaintiff, who claims under a mortgage given by one of the sons, cannot recover.

Judgment for the defendant.