98 Misc. 694 | N.Y. Sup. Ct. | 1917
This action is brought by plaintiff under section 1638 of the Code of Civil Procedure “ to compel the determination of a claim adverse to that of the plaintiff in respect to certain real estate.” The property is situated at the southeast corner of Broadway and Hillside avenue. It comprises four lots, approximately 25 to 150 feet each, facing Broadway, and numbered for the sake of convenience at this trial 1, 2, 3 and 4, proceeding from south to north. Adjoining it on the north is a lot approximately 100 by 150, which extends from the northern line of this property to the southern line of Hillside avenue. The last mentioned lot is for convenience denominated No. 5. The four lots in controversy are and have always been unoccupied and unfenced. Upon lot No. 5 there is and has been for some years a shack or hut resided in by some of the defendants. The controversy involves primarily the1 construction of the will of William Molenaor, which was admitted to probate in this county on May 5, 1812. Plaintiff claims, and it is stipulated that it held, a full legal paper title passing-through David William Molenaor, the eldest son of the testator, and plaintiff’s claim is that under the will said David William Molenaor became seized- of a fee simple in property which includes the lots in controversy. Defendants, on the other hand, claim that David William Molenaor took, if anything, only a life interest, and that the remainder or fee vested in his lawful heir, Martin Montrose Molenaor, through whom the defendants claim title. Defendants have filed maps covering the lots in question and have issued statements to the effect that they are
Judgment for plaintiff, with costs.