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125 A.D. 172

Bennett v. McLaughlin

Appellate Division of the Supreme Court of the State of New York · decided 1908-03-06

Appeal by the plaintiffs, Mary J. Bennett and others, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Westchester on the 16th day of March, 190.7, upon the decision of the court rendered after a trial at the Westchester Trial Term, both parties having moved for the direction of a verdict, with notice of an intention to bring up for review an order dated the 29th day of January, 1907 and entered in said…

Relies on Campbell v. . Beaumont

Decided 1908-03-06

Gaynor, J.:

¶1The devise to the wife was in fee. It is in clear terms, and the later words do not cut it down. They could not do so' unless they manifest that clear intention. It would not suffice that they raise a doubt on the question. The later words of the right of the wife to sell “as she may deem proper and for the best interest of our children ”, do not reduce her estate to one for life or make her the trustee of the children. The expression of the testator’s wish that *174if anything be left that she shall divide it among the children does not annex a condition to the devise that if the devisee do not dispose of the property by deed of conveyance it shall go to the children on her death. ■ The' words fall much short thereof (Campbell v. Beaumont, 91 N. Y. 465 ; Banzer v. Banzer, 156 id. 429 ; Foose v. Whitmore, 82 id. 405; Post v. Moore, 181 id. 15).

¶2The judgment should be affirmed.

¶3Jenks, ITookeb, Rich and Milleb, JJ., concurred.

¶4Judgment affirmed, with costs.

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