166 N.Y. 368 | NY | 1901
The plaintiff asserts the invalidity of all the provisions of the will herein, except those which relate to the widow's life estate and to the process of administration. The defendants primarily defend the will as a whole, and secondarily upon the theory that if any of its provisions are void these can be eliminated without destroying the testamentary *371
scheme or creating partial intestacy. The complaint was dismissed at Special Term, and this ruling was affirmed by the Appellate Division upon the ground that plaintiff's claim presents a purely legal question, which has no place in a court of equity. While concurring in the result reached by the learned Appellate Division, we do so upon other grounds than those stated in its opinion. We think that under the cases of Brady v. McCosker
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The judgment herein should, therefore, be affirmed, with costs in accordance with the foregoing suggestions respecting the parts of the will which are held to be valid and those which are declared to be void.
PARKER, Ch. J., GRAY, O'BRIEN, HAIGHT, LANDON and CULLEN, JJ., concur.
Judgment affirmed.