13 Barb. 106 | N.Y. Sup. Ct. | 1852
The pecuniary provision, made by George Lasher by his last will, in favor of his wife, the plaintiff, was not stated in the will to be in lieu of doWer. It was to continue, moreover, so long only as she remained his widow, and it was charged with the furnishing a home for his two daughters, so long as they remained single.
The testator devised to the defendant one hundred acres of his home lot and fifteen acres of wood land, in fee, and charged him with the payment of one hundred and fifty dollars to each of his three sisters, being $450. The will then proceeds thus: “ I also will and order that my said wife Catherine be well and sufficiently supported and maintained by my son Elias out of the property bequeathed to him, so long as she may remain my widow.” It is insisted by the defendant that as the term bequeath is only applicable to a testamentary disposition of personal estate, and as none such is mentioned in the will, the defendant takes nothing under the will which is chargeable with the support of the plaintiff. Although the word “ devise" is the appropriate term, in a will, to pass real estate, and bequeath, the term applicable to gifts of personal property, yet a strict adherence to technical words is not necessary to give effect to any species of disposition. In Doe v. Tofield, (11 East, 246,) the testator’s real estate was held to pass, under a will bequeathing his personal estate; it being manifest, from the whole scope of the instrument, that a disposition of his real estate was intended; and see to the same effect Roe v. Patterson, (16 East, 221.) Technical words are indeed presumed to be used
The acceptance of the lands devised charged with the plaintiff’s support, was a sufficient consideration to raise a promise to pay for that support. The value of the support during the period covered by this, action was proved. Ho question on that point is raised by the bill of exceptions. The former suit was for the support of the plaintiff, for a period previous to the time for which the present action was brought, and therefore formed no bar to the present action. It was not like the case of Fish v. Folley, (6 Hill, 54.) There was an express covenant, the breach of which entitled the covenantee to damages equivalent to the rights secured by it. But here is a charge of support, continuing in its own nature, during the lifetime of the plaintiff, which could not be estimated in a single suit.
There is nothing in the language of the will which indicates
Willard, Hand and Cady, Justices.]
The record of the former suit was introduced by the plaintiff without objection at the time. The remark of the learned judge, that the record was evidence of the defendant’s entry under the will, and of the defendant’s promise, was entirely immaterial, inasmuch as the defendant’s entry under the will stands admitted by the pleadings, and the law raises the promise, to support the plaintiff, from the acceptance of the devise.
On the whole, I perceive no error in the ruling at the circuit.
New trial denied.