13 E.H. Smith 181 - Lockwood v. . Mildeberger’s Empirical Analysis

Citation profile

53 state decisions

Most-quoted passages

The sentences later courts lift from this opinion, ranked by how many decisions quote each — the parts of the opinion doing the work. These counts are smaller than the citation total above because most of the 53 citing decisions cite the case generally; a passage count includes only decisions quoting that exact language verbatim.

1. ““It was held by this court in Hutton v. Benkard ( 92 N. Y. 295 ), that the rule laid down in Section 126 (supra), touching the execution by will of a power as to real estate, should be applied to personal estate also, and it follows, therefore, that it is the law of this state that by the residuary clause, by which Mrs. Mildeberger gave to her husband all the rest, residue and remainder of her estate, she executed the power of appointment given to her by her grandmother’s will, unless it appears expressly, or by necessary implication from the language of the will, that it was not her intent that the will should operate as an execution of the power. It is not pretended that she expressed an intent that the residuary clause should not operate as an execution of the power, nor do we think that it appears by necessary implication. Such an intent is not to be implied from the fact that no reference was made to her grandmother’s will, or to the power of appointment therein conferred upon her, for the disposition of all her own property operated under the will as an exercise of such power of appointment. The omission of all reference to it, therefore, does not imply an intent not to execute the power. The basis for a necessary implication that it was not her intent to execute the power must, therefore, be found in some other provision than that which under the will operates as an execution of the power. In examining the will in the light of the grandmother’s will, and the circumstan”

   1 later decision quote this exact passage
   e.g. Rhode Island Hospital Trust Co. v. Dunnell

2. ““It is not necessary, as we have seen, that she [testatrix] should have had an intent to execute it [power], for the statute steps in and sends the property, subject to the power, in the same direction as that in which the testatrix has sent her own property.””

   1 later decision quote this exact passage
   e.g. Wilmington Trust Co. v. Wilmington Trust Co.

3. ““Lands embraced in a power to devise, shall pass by a will purporting to convey all the real property of the testator, unless the intent that the will shall not operate as an execution of the power, shall appear, expressly or by necessary implication.””

   1 later decision quote this exact passage
   e.g. Hollister v. Hollister