122 N.Y.S. 463 | N.Y. Sup. Ct. | 1910
The defendant demurs to the complaint for insufficiency. The plaintiff, as heir at law and next of kin of his daughter Emma O’Hare, brings the action for the purpose of having it adjudged that he is the sole and absolute owner of all the real and personal estate of which she died seized and possessed, subject to the payment of her debts and funeral expenses and the expenses of adminis
The agreement between the parties cannot be regarded as a. waiver of any of their legal rights beyond the express terms thereof; and, while he agrees not to make any claim of any kind against her and releases her from any and all claims whatsoever, there is no release of any claims or rights which the law gives him in her estate upon her death.
The charge is made in the complaint in general language that, during certain months named, the defendant “ committed many acts of adultery with divers persons and treated the said Emma O’Hare in a vicious, cruel and inhuman manner ” ; but no divorce has ever been had, and this charge does not affect the marital rights of the husband in the wife’s estate. It has even been held, where an interlocutory decree of divorce on statutory grounds had been entered against a wife and where the husband died prior to the entry of the final decree, that a final decree thereafter entered was un
If this view is correct, the complaint fails to state a cause of action and the demurrer must be sustained.
Demurrer sustained, with costs.