80 N.Y.S. 16 | N.Y. Sup. Ct. | 1902
In 1863 one Achille Ludwig became the owner of the property which is the subject of this action. In 1866 he and his wife Agnes conveyed one equal undivided half of said property to Paul Jeanne, and later said Paul Jeanne and Annie, his
I decide that John Walter Bighter, the plaintiff herein, is now seized in his own right in fee simple as tenant in common of, in and to seven-twelfths of the premises mentioned and described in the complaint, subject to the said mortgage to the defendant Bacigalupo and interest thereon, and subject to the said mortgage to the defendant Angeline Court and interest thereon; that the defendant Edward I. Ludwig is seized in his own right in fee simple as tenant in common of, in and to five-twelfths of said .premises subject to the right of dower of his wife the defendant Julia A. Ludwig; that the defendant Jeannette H. Bacigalupohas a lien on the interest or share of the plaintiff in the sum of $1,000, with interest thereon; that the defendant Angeline Court has a lien, on the interest or share of the plaintiff in the sum of $3,000, with interest thereon; that the defendant Julia A.'Ludwig has an inchoate right of dower in the five-twelfths interest of the defendant Edward I. Ludwig; that the defendants John D. Cordes and Jacob Sparrow are tenants in said property under leases which terminate on May 1, 1903; that the premises hereinabove mentioned'is the only real estate owned in common-by the parties to this action; that there are no liens or incumbrances on the
The grounds of this decision are as follows: Section 284 of the Real Property Law provides that, “ If the intestate die without lawful descendants, and leave a father, the inheritance shall go ro such father, unless the inheritance came to the intestate on the part of his mother, and she be living; if she be dead, the inheritance descending on her part shall go to the father for life, and the reversion to the brothers and sisters of the intestate and their descendants, according to the law of inheritance by collateral relatives hereinafter provided.” On the death of Charles Achille Ludwig, Achille Ludwig owned one-half of said property in fee and held an interest for life in a portion of the rest of the property. . Franklin B. Ludwig owned one-sixth in fee which came to him from said Agnes LudAvig, and Franklin B. Ludwig also OAvned one-tAvelfth in fee which descended to him from said Charles Achille Ludwig. Edward I. LudAvig owned one-sixth in fee which came to him from said Agnes Ludwig and he also owned one-twelfth in fee* which came to him from Charles Achille LudAvig. On the death of Franklin B. Ludwig the one-sixth which he had received from his mother Agnes, LudAvig descended to the sole surviving brother the said Edward I. Ludwig. The one-twelfth which he received from his brother Charles Achille Ludwig descended to his father Achille Ludwig. This one-twelfth came to said Franklin B. Ludwig under section 284 of the Real Property-Law, and would not go to the defendant Edward I. Ludwig unless it came to the said Franklin B. Ludwig “ on the part of his mother and she be living.” I have not been able to find a case exactly like the present, but a similar point was considered in the Court of Appeals in Wheeler v. Clutterbuck, 52 N. Y. 67. The facts in that case were that one Richard Tighe died intestate, seized of certain real estate and leaving a widow and two children Patrick and Letitia. The widow remarried and by the second marriage had one son William. Letitia then died intestate Avithout descendants and'thereafter Patrick also died intestate Avithout descendants, leaving his mother and his half-brother William alive. It was held that as to the undivided one-half of the land which came to Patrick by descent from his father William the half-brother was excluded from inheriting because he was not of the
Judgment accordingly.